Lorna McMahon, R (on the application of) v Independent Office for Police Conduct

A review by the Independent Office for Police Conduct is not a re-investigation. It examines whether the police complaint outcome was reasonable and proportionate, including the sufficiency of the investigation and evidence gathered. On judicial review, the court must not substitute its assessment for that of the investigator or reviewer. Intervention is generally limited to public law error, such as legal misdirection, irrationality, failure to consider relevant matters, bias or procedural unfairness. At the permission stage, the claimant must show an arguable error with a realistic prospect of success. Reasonable adjustments may coexist with proportionate restrictions on excessive or unacceptable contact, provided communication remains possible and the claimant is not materially prejudiced.

The claimant sought permission to judicially review the IOPC’s decision of 22 September 2023 not to uphold her application for a review of Greater Manchester Police’s re-investigation into complaints concerning the treatment of her niece’s domestic abuse allegations before her death.

The principal issues were whether the IOPC unlawfully confined the review, wrongly assessed vulnerability and the prospects of a Clare’s Law disclosure, failed to address alleged investigative defects, acted irrationally or unfairly, breached the Human Rights Act 1998 or Equality Act 2010, and whether disclosure was necessary in the judicial review.

1. Permission refused. The claimant had not established an arguable public law error with a realistic prospect of success.
2. Under paragraph 25 of Schedule 3 to the Police Reform Act 2002, the IOPC’s function was to decide whether the complaint outcome was reasonable and proportionate. It was not required to re-investigate the complaint itself. The complaints concerning the investigation into the cause of death and possible third-party involvement were outside the scope of the particular complaint under review and had been addressed through other complaint processes.
3. The IOPC was entitled to assess vulnerability by reference to the information available to GMP when the relevant decisions were made and to apply the THRIVE definition. Its assessment of the telephone call and other material disclosed no public law error.
4. The error in telling the deceased that she was ineligible for a Clare’s Law disclosure did not establish that a disclosure should have been made. The relevant officer did not make the eligibility decision, further information was still being sought, the 35-day period had not expired, and the evidence did not show that the criteria for disclosure had been met.
5. The IOPC acted lawfully in applying its policy on unacceptable contact. Restrictions on email and telephone contact were proportionate, were imposed as a last resort, and did not prevent the claimant from communicating or materially prejudice her case. The initial failure to complete the telephone adjustment did not amount to procedural unfairness.
6. The general civil disclosure rules did not apply. Disclosure in judicial review depended on the duty of candour or an order necessary to deal fairly and justly with a particular issue. The requested footage from 3 August 2021 was not necessary because it had not been considered by the decision-maker and concerned matters outside the review. The court ordered disclosure of the 12 July telephone recording, which was relevant to the challenge concerning vulnerability.

not stated in the judgment.