Driver, R (on the application of) v Independent Police Complaints Commission

Article 3 of the European Convention on Human Rights requires treatment to attain a minimum level of severity before it engages. Where the circumstances disclose no arguable degrading treatment, the related investigative duty is not triggered. Temporary removal of a detainee’s clothing to prevent self-harm may be lawful where supported by a proper risk assessment, appropriate monitoring and continuing review. Police and Criminal Evidence Act 1984 Code C does not impose an absolute prohibition on removing clothing in such circumstances. An IPCC appeal is a review of the police investigation, not a re-investigation. The IPCC may rely on a contemporaneous custody record and decline further inquiries where the passage of time and the available evidence make them disproportionate.

The claimant challenged the IPCC’s decision not to uphold his appeal against findings arising from the investigation of his complaint about treatment in police custody. His clothing had been forcibly removed for approximately 35 minutes after he attempted to use it, and a blanket, to harm himself. He alleged that the removal breached Article 3 of the European Convention on Human Rights, Police and Criminal Evidence Act 1984 Code C, and police policy.

The Chief Constable’s investigation concluded that the treatment was fair and proportionate and disclosed no case to answer. The IPCC concluded that the findings did not need reconsideration. The issue was whether that conclusion was legally open to the IPCC.

1. Application dismissed. The IPCC was entitled to conclude that the Chief Constable’s findings did not need reconsideration.
2. Article 3 requires a minimum level of severity. The claimant’s clothing was removed for a clear purpose: preventing self-harm. It was restored after about 35 minutes when the perceived risk had receded. He was subject to CCTV observation and physical checks, and there was no evidence that he suffered cold, injury or comparable distress. The circumstances disclosed no arguable degrading treatment and therefore no potential Article 3 claim.
3. Where there is a potential breach of Article 3, the state has a secondary duty to investigate. That duty did not arise because the threshold was not met in this case.
4. Part 4 of the Police and Criminal Evidence Act 1984 and Code C, made under section 66, did not prohibit removing clothing to reduce a detainee’s immediate risk of self-harm. Paragraphs 3.8 to 3.10 required structured risk assessment, implementation of an appropriate response and continuing review. The custody record showed those requirements being addressed. Paragraph 8.5 was not breached because clothing was returned before interview.
5. The later Chief Constable’s policy could not determine the legality of events in 2007 because there was no evidence that it was then in force. In any event, a specific and proper risk assessment could justify departing from a general policy requiring replacement clothing where that clothing might itself facilitate self-harm.
6. The IPCC’s statutory function was to review, rather than re-investigate, the Chief Constable’s investigation. It was entitled to treat the custody record as an accurate account and to conclude that, after several years, further investigation of an unidentified custody officer would be disproportionate and unlikely to reveal misconduct.