Northumbria Police, R (on the application of) v Vickers & Ors

An independent police complaints appeal body must reconsider the complaint and evidence afresh. Its review is not confined by defects or omissions in the investigator’s regulation 16 notice, although procedural unfairness may arise when disciplinary proceedings are pursued on an inadequately particularised allegation.

A finding that there is a case to answer requires sufficient evidence on which a properly directed misconduct tribunal could find misconduct on the balance of probabilities. Where the alleged misconduct is negligent operational decision-making, it is insufficient that a reviewer or tribunal might have reached a different judgment. The decision-maker must identify the applicable standard of care and an arguable breach. A finding must also be linked to a specified breach of the Standards of Professional Behaviour. The IOPC’s decision was irrational and was quashed.

The Chief Constable challenged an IOPC decision upholding complaints by several demonstrators concerning their arrests during a public-order operation. The IOPC found that Chief Superintendent Neill had a case to answer for misconduct, based principally on the alleged failure properly to process, evaluate and corroborate intelligence and the alleged absence of reasonable grounds for suspicion.

The challenge alleged that the regulation 16 notice did not cover the complaint, that the IOPC applied the wrong arrest test, and that its conclusion was irrational. The central issues were the scope of the IOPC’s appellate review and the legal threshold for finding a case to answer.

1. The claim succeeded. The IOPC decision dated 29 August 2018 was quashed and the matter was remitted under section 31(5) of the Senior Courts Act 1981.
2. The IOPC’s statutory task was to give the complaint and evidence fresh consideration. Its review was not restricted by the investigator’s regulation 16 notice. The notice was substantially compliant because Chief Superintendent Neill understood that the issue was whether the intelligence gave objective grounds for the arrests. Any prejudice from an inadequate notice would ordinarily arise when disciplinary proceedings were pursued, rather than merely when a case to answer was identified. The asserted waiver failed because the officer had no effective choice to abandon the process.
3. The IOPC did not unlawfully conflate reasonable suspicion with the separate statutory requirement of necessity for arrest. A superior officer who directs an arrest may himself be liable if he lacks the requisite belief. The authorities did not establish that only the arresting officer’s state of mind was relevant.
4. A case to answer means that there is sufficient evidence on which a reasonable misconduct hearing or meeting could find misconduct on the balance of probabilities. The IOPC was not deciding whether the arrest was lawful. It nevertheless had to identify the relevant form of misconduct and connect the allegation to a breach of the Standards of Professional Behaviour.
5. The low threshold for reasonable suspicion required the intelligence to be assessed cumulatively, rather than by compartmentalising individual items. On the evidence, the intelligence, the previous incident, the presence of relevant individuals and the refusal to agree a protest route were capable of establishing reasonable suspicion that the group intended a violent confrontation. The IOPC’s contrary assessment was irrational.
6. If the alleged misconduct was negligence in assessing intelligence, it was insufficient that the decision-maker or tribunal might have reached a different conclusion. The decision-maker had to identify the applicable standard of care and be satisfied that an arguable breach was shown. That exercise would ordinarily require consideration of relevant policies, practices or procedures. The IOPC did not do so.
7. The finding concerning failure to process, evaluate or corroborate intelligence was independently irrational because no Northumbria Police policy was identified, despite the officer’s evidence that the applicable procedures had been followed. The decision was therefore quashed.

This was a first-instance judicial review. The judgment records earlier complaint investigations, an earlier consensual quashing of the decision concerning Mr Vickers, subsequent reinvestigations, and the impugned IOPC decision. It also records a later County Court judgment dismissing related civil claims, but that decision was not the decision under review.