Goodenough, R (on the application of) v Independent Police Commission & Ors

Disclosure in a police misconduct investigation is permitted only where it is necessary for the proper discharge of the investigating authority’s statutory function. A family’s entitlement to participate under Article 2 of the Convention does not create a general right to the underlying investigation material. Disclosure will be exceptional where the authority can properly assess whether disciplinary proceedings should be recommended without it. The relevant threshold is whether there is a realistic prospect that the misconduct complaint will be upheld. The disciplinary standard is the balance of probabilities. An acquittal in criminal proceedings is relevant but not conclusive; the decision-maker must consider the evidence in light of the lower disciplinary standard and what occurred in the criminal proceedings.

The claimant challenged the Independent Police Complaints Commission’s decision not to recommend misconduct proceedings against three serving police officers following the death of Robin Goodenough during an attempted roadside detention. The claimant argued that the Commission should have disclosed the original Hampshire Police investigation report before inviting representations. It was also argued that the Commission had given undue weight to the officers’ criminal acquittals and failed to apply the balance-of-probabilities standard.

The Commission relied on a further investigation report, the evidence tested at the criminal trials, and the absence of a realistic prospect of misconduct allegations being upheld. The issues were whether disclosure was necessary under section 80 of the Police Act 1996 and whether the Commission’s approach to the acquittals was legally flawed.

1. The claim was dismissed. There was no order for costs, except public funding assessment.
2. Article 2 of the European Convention on Human Rights entitled the family to participate in the disciplinary process sufficiently to protect its interests. That entitlement did not override the statutory restriction on disclosure.
3. Under section 80 of the Police Act 1996, material received by the Commission could be disclosed only where disclosure was necessary for the proper discharge of its functions. Applying Regina (Green) v Police Complaints Authority [2004] 1 WLR 725, the court held that the original investigation report was not necessary to enable the Commission to decide whether disciplinary proceedings should be recommended. Disclosure was therefore prohibited. The alleged evidential discrepancies did not make this an exceptional case, since the family could make representations from the material already supplied.
4. The applicable decision-making test was whether there was a realistic prospect that a misconduct complaint would be upheld. The disciplinary standard was the balance of probabilities under regulation 23(3)(b) of the Police Conduct Regulations.
5. The Commission had directed itself correctly. The criminal acquittals were treated as relevant, but not conclusive. The Commission had considered the evidence tested at trial and the lower disciplinary burden. There was no basis for concluding that it had applied the wrong test or given undue weight to the acquittals.
6. The decision was within the range of reasonable decisions open to the Commission. On the evidence, the officers’ initial attempts to remove the deceased from the vehicle could not sensibly be characterised as the knowing use of excessive force absent evidence that they anticipated the subsequent blows. Both grounds of challenge therefore failed.

not stated in the judgment.