Green, R (on the application of) v The Independent Police Complaints Commission & Anor

For a misconduct investigation, the question is whether the evidence is sufficient for a reasonable misconduct meeting or hearing, properly directed, to find misconduct or gross misconduct on the balance of probabilities. The investigator and reviewing authority must evaluate the evidence, but must not determine the merits of the alleged misconduct or make findings that effectively dispose of the complaint. A conclusion that there is no case to answer is unlawful where it fails to engage with a significant aspect of the evidence and is not rationally supported by the objective material. The court must examine the connection between the available evidence and the conclusion reached.

The claimant sought judicial review of the Independent Police Complaints Commission’s conclusion that a police constable had no case to answer in respect of a misconduct complaint. The complaint arose after the constable used CS spray at close range during a disturbance at Warwick University.

The investigator’s report accepted that the spray had been used very close to the claimant’s eyes but concluded that the constable had acted reasonably in a rapidly developing public-order incident. The claimant argued that the report and the Commission’s conclusion failed to address the manner and necessity of the close-range use, impermissibly determined the merits, and were irrational. The central issues were the proper case-to-answer test, the limits of investigative evaluation, and whether the conclusion was supported by the evidence.

1. The claim succeeded. The Commission’s decision that there was no case to answer in respect of misconduct was unlawful and was quashed.
2. The appropriate test was whether, on an objective analysis, the conclusion that there was no case to answer was supported by the relevant evidence. The accepted guidance required a case to answer where there was sufficient evidence on which a reasonable misconduct meeting or hearing, properly directed, could find misconduct or gross misconduct on the balance of probabilities. This test was derived from [2015] PTSR 72.
3. The investigator was entitled, and required, to evaluate the evidence. However, the investigator and the Commission could not make a finding that the use of force was justified in a way that effectively determined the misconduct allegation. Under 2014 EWCA Civ 1367, the merits were for any subsequent misconduct tribunal.
4. The report did not expressly address a significant aspect of the complaint: why the CS spray was moved closer to the claimant’s eyes as it was discharged, rather than being used with the officer stationary and the spray held close to his chest as illustrated in the ACPO guidance. The objective footage showed very close-range use, the spray held out in front of the officer, apparent movement towards the claimant’s face, and no clear advance by the claimant at the moment of discharge.
5. The evidence did not clearly demonstrate that very close-range use was necessary or justified. The conclusion depended substantially on the constable’s account of the perceived threat and the movement of the spray. A reasonable misconduct committee could have concluded that the use was unnecessary or unjustified. The conclusion that there was no case to answer was therefore not rationally supportable.

Permission to apply for judicial review was granted by Cranston J on 9 March 2016. The judgment itself was a first-instance decision of the Administrative Court.