Miah, R (On the Application Of) v Tthe Independent Police Complaints Commission & Anor

Under Schedule 3 to the Police Reform Act 2002, an investigating officer must provide the appropriate authority with a full report of the investigation, including findings about what happened and why. Restrictions on disclosure for national security or other public-interest reasons apply when findings are notified to the complainant, not when the investigating officer reports to the appropriate authority. The appropriate authority must apply the harm test before withholding information. On appeal, the IPCC must address a complaint that findings are incomplete and may direct a further report or reinvestigation. It cannot dismiss the appeal as futile merely because further disclosure may ultimately be withheld. The absence of a duty to give reasons for a Schedule 7 stop does not remove the separate duty to investigate a complaint fully.

The appellant was stopped and questioned at Heathrow under Schedule 7 to the Terrorism Act 2000. He complained that the stop and questioning were religiously discriminatory. The Metropolitan Police investigation report did not explain why he had been stopped or acknowledge intelligence material relevant to the decision. The IPCC dismissed his appeal, having considered confidential material but withholding the reasons for the stop.

The High Court dismissed the judicial review claim without using closed material proceedings: [2016] EWHC 3310 (Admin). The appellant appealed, principally arguing that the investigation findings were inadequate, that the harm test had not been properly applied, and that the court should not dismiss the claim without reviewing the secret material.

The Court of Appeal, in a judgment delivered by Sales LJ with which Jackson and Flaux LJJ agreed, allowed the appeal on Grounds 1 and 2 and remitted the matter to the IPCC.

1. Under Schedule 3 to the Police Reform Act 2002, the investigating officer must submit a report containing the full findings of the investigation to the appropriate authority. The report must contain the information needed for the appropriate authority to decide whether a criminal offence may have been committed and whether the officer has a case to answer for misconduct or gross misconduct. The non-disclosure provisions in section 20(5)–(7) and regulation 12 do not apply when the investigating officer prepares the report for the appropriate authority.
2. The statutory reference to the findings of the investigation means findings about what happened and why. It includes findings actually made and findings which should have been made after proper investigation. The investigating officer cannot produce a report which is redacted in anticipation of its later disclosure to the complainant.
3. After receiving the full report, the appropriate authority must decide what findings should be notified to the complainant and must apply the statutory harm test before withholding information. The appropriate authority, rather than the investigating officer, makes those non-disclosure decisions.
4. On an appeal under paragraph 25 of Schedule 3, the IPCC must determine whether the complainant has received adequate information and whether the findings need reconsideration. It may direct the appropriate authority to secure a full report or require reinvestigation. It cannot treat the appeal as a sterile exercise where the underlying procedures were not followed, even if further information might ultimately be withheld.
5. The no-reasons feature of Schedule 7 to the Terrorism Act 2000 did not affect the distinct obligation to investigate a complaint under Schedule 3. The possibility that Schedule 7 powers may have been exercised improperly required full findings to be made. The IPCC’s function of maintaining public confidence also required it to check that the statutory procedures had been followed.
6. The IPCC was entitled to find that its own officer had considered the harm test. However, there was no adequate basis for concluding that the MPS had properly applied that test. In the absence of closed proceedings, the judicial review claim could not be dismissed under section 31(2A) of the Senior Courts Act 1981 on the basis that the outcome would highly likely have been the same.

• Court of Appeal (Civil Division) allowed the appeal on Grounds 1 and 2 and remitted the case to the IPCC. Ground 3 was not considered: [2017] EWCA Civ 2108.
• High Court (Administrative Court) dismissed the judicial review claim without closed material proceedings: [2016] EWHC 3310 (Admin).