Crosby, R (on the application of) v IPCC

A custody officer’s risk assessment under Code C is a continuing process and must be reviewed when circumstances change, including after attempts at self-harm. Compliance may be established by the custody record and the officers’ responsive actions, even where there is no exactly contemporaneous narrative entry recording each reassessment. The court must distinguish between carrying out an assessment and describing it in the custody record. Appropriate responses may include removing means of self-harm, close observation and repeated efforts to obtain medical assistance. On the facts, the IPCC was entitled to conclude that the officers acted reasonably, complied with Code C, and had no case to answer.

The claimant sought judicial review of the IPCC’s decision dated 22 April 2008 refusing her appeal against the dismissal of her complaint concerning her treatment in police custody. She alleged that officers failed to reassess the risk after three attempts at self-harm, obtain appropriate medical attention and provide an appropriate adult. She also argued that the IPCC had applied the wrong test by asking whether a misconduct tribunal would be more likely than not to find misconduct. Permission had been granted on a limited basis after an earlier refusal on the papers. The central issues were whether the IPCC adopted the correct approach and whether its conclusions were legally irrational or otherwise unlawful.

1. The IPCC’s approach. The IPCC correctly considered the appeal on the balance of probabilities. It was entitled to assess whether the investigating officer’s conclusion that there was no case to answer was justified. It did not adopt an erroneous legal test or an impermissibly restrictive approach to the evidence.
2. Risk assessment. Code C requires risk assessments to be completed and reviewed when circumstances change. Each attempt at self-harm constituted such a change. The documentary evidence supported the conclusion that assessments were carried out after the events at 8.25pm, 11.18pm and 11.47pm, and that each produced an appropriate response.
3. Evidence of compliance. The court distinguished between the carrying out of a risk assessment and the description of it in the custody record. The record showed both the continuing assessment and the officers’ responses. Those responses included placing the claimant in a CCTV cell, close observation, progressively removing clothing and other items capable of being used for self-harm, and repeated attempts to contact the forensic medical examiner.
4. Medical attention. The court accepted that the officers acted reasonably in relying on the medical assistance available. The claimant was assessed by three doctors. There was no sufficient indication that an appropriate adult or immediate assessment under the Mental Health Act 1983 was required. The court found nothing to show that the clinical attention provided was inappropriate in the circumstances.
5. The IPCC’s findings were complete, adequately reasoned and supported by the evidence. The claimant’s challenge was in substance a disagreement with factual conclusions rather than an established public law error. The IPCC was entitled to find that the investigating officer’s conclusions and the decision to take no further action were justified. The claim was dismissed, with detailed assessment of the claimant’s costs.

Permission for judicial review was initially refused on the papers. On renewal, permission was granted on a limited basis by Lloyd Jones J. The Administrative Court dismissed the claim and upheld the IPCC’s decision.