AB, R (On the Application Of) v West Yorkshire Police

The threshold for certifying a police complaints investigation as subject to special requirements is relatively low, but the decision is not confined to the face of the complaint. The investigator may consider the circumstances and evidence available at the time, including whether the allegation is inherently unlikely or undermined by other material. A complaint may nevertheless fall outside the scheme where it is so wholly without foundation that there is no indication of possible criminality or misconduct. Certification does not necessarily require a formal interview or a more intensive investigation. On appeal, it may be appropriate to consider whether a decision not to certify was proper, but relief will not follow where that issue could not affect an otherwise sound investigation and outcome.

The claimant sought judicial review of the defendant’s decision not to uphold his appeal concerning a police investigation into complaints arising from his arrest and detention at a football match. He alleged unlawful force, failures concerning arrest and custody procedures, denial of legal advice, and fabrication of evidence.

The investigation was not certified under paragraph 19B of Schedule 3 to the Police Reform Act 2002 as subject to special requirements. The complaint was investigated locally, not upheld, and the defendant’s appeal decision confirmed that outcome. The central issues were whether the special requirements test had been lawfully applied, whether that issue could be considered on appeal, and whether the investigation and appeal were otherwise adequate.

1. Application refused. The police complaints system lawfully permitted reviewing officers to undertake initial recording, categorisation and assessment functions, provided that the person investigating ultimately decided whether the paragraph 19B test was met. The statutory scheme did not require the intended investigator to undertake every initial action.
2. The words “appears”, “an indication” and “may” in paragraph 19B(1) of Schedule 3 to the Police Reform Act 2002 imposed a relatively low threshold. Nevertheless, the test was not limited to the face of the complaint. The investigator could consider the circumstances and evidence available at the time, including whether an assertion was bare, inherently unlikely or undermined by other material.
3. That approach was compatible with the separate requirement that any severity assessment following certification proceed on the basis that the alleged conduct had been proved. It was also consistent with the tests governing local resolution and the identification of the relevant appeal body.
4. On the facts, the claimant’s contemporaneous court form, acceptance of a fixed penalty, custody record and other available material materially undermined his account. The investigator was entitled to conclude that this was not a case in which competing accounts left the truth genuinely uncertain. The decision not to certify was neither irrational nor otherwise unlawful.
5. The investigation was proportionate. The lapse of approximately 20 months, the detailed statements made by the principal officers on the night, the difficulty of identifying other officers and the review of available CCTV justified the investigative approach. Certification would not necessarily have required formal interviews, and there was no realistic prospect of a different outcome.
6. Although an appeal may, in an appropriate case, consider the propriety of a decision not to certify special requirements, that issue could not affect the otherwise unimpeachable merits outcome here. The claim was therefore refused. Costs were to be dealt with administratively.

First-instance judicial review in the High Court (Administrative Court). The application was refused.