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

The court refused permission to apply for judicial review of the Independent Office for Police Conduct's decision of 22 September 2023 not to uphold the claimant's request for a further review of Greater Manchester Police's re-investigation. The judgment summarises the IOPC's statutory remit under paragraph 25 of Schedule 3 to the Police Reform Act 2002 and the statutory test in sub-paragraph 25(4A) (to determine whether the outcome is reasonable and proportionate) and (4B)/(4C) (scope of review, power to review findings and to direct re-investigation or make recommendations).

The judge applied conventional public law review principles at the permission stage: the court will not substitute its own view for the IOPC's judgment unless there is an arguable public law error (illegality, irrationality, failure to take into account relevant considerations, taking into account irrelevant considerations, bias or procedural unfairness). The court found no arguable error in the IOPC's assessment of: (1) whether the subject matters complained of lay within the scope of the review; (2) the adequacy of GMP's initial and posthumous investigation and the reinvestigation; (3) the assessment of vulnerability; (4) the explanation for missing body-worn video footage; and (5) Clare's Law (DVDS) handling. The Equality Act reasonable-adjustments and Human Rights Act grounds were not particularised or shown to have realistic prospects of success.

The court also considered and refused late requests for disclosure save that it ordered disclosure of the recording of the telephone call of 12 July 2021 for the limited purpose of fairly determining the procedural challenge; otherwise disclosure of BWV from 3 August 2021 was refused as unnecessary to determine lawfulness of the IOPC decision.

This is a first-instance permission decision by Lang J in a judicial review claim brought by the claimant, a litigant in person, challenging the IOPC's decision of 22 September 2023 not to uphold her request for a review of Greater Manchester Police's re-investigation into complaints arising from the death of her niece, Teresa McMahon. The claimant sought permission to apply for judicial review and also sought disclosure of police material, including body-worn video and a telephone recording.

Background and parties:

• The claimant is the niece and an interested family member in the inquest into Teresa McMahon's death on 3 August 2021.
• The defendant is the Independent Office for Police Conduct (IOPC). The interested party is Greater Manchester Police (GMP).
• GMP conducted initial investigations and a local investigation (CO/00234/22) into complaints that GMP should have investigated domestic abuse allegations against RC, identified TM as vulnerable, provided Clare's Law disclosure and that TM's death could have been avoided. The IOPC had earlier upheld a previous review and directed GMP to re-investigate; following re-investigation DS Greetham concluded the service was acceptable and the claimant sought IOPC review of that reinvestigation; the IOPC declined to uphold the review on 22 September 2023.

Nature of the claim and relief sought:

• The claimant sought permission to apply for judicial review of the IOPC's 22 September 2023 decision. Grounds pleaded included illegality, procedural impropriety, breach of the Human Rights Act 1998 and failure to make reasonable adjustments under the Equality Act 2010. The claimant also sought disclosure of BWV footage and a recording of a telephone call between PC Sharrocks and TM.

Issues framed by the court:

• The proper statutory remit and standard of review for the IOPC under paragraph 25 of Schedule 3 to the Police Reform Act 2002, particularly sub-paragraphs 25(4A), (4B) and (4C).
• Whether the IOPC's decision disclosed arguable public law errors: misdirection in law, irrationality, failure to take into account relevant matters, taking into account irrelevant matters, bias or procedural unfairness.
• Whether the IOPC failed to make reasonable adjustments under the Equality Act 2010.
• Whether disclosure of specific material was necessary to deal fairly and justly with the judicial review challenge.

Court's reasoning and conclusions (concise):

• The IOPC's role is a review of the outcome (whether reasonable and proportionate), not a re-investigation. The judge emphasised the statutory test in Schedule 3 paragraph 25 and that the IOPC may review findings but is not permitted to re-investigate criminal matters.
• The court found that the IOPC was entitled to treat allegations about the adequacy of the criminal investigation into TM's death by DI Humphreys as outside the scope of the particular review at issue and that earlier reviews and a subsequent PIP4 review had addressed those matters. Challenge on that point was unarguable.
• The judge reviewed each main pleaded issue (initial investigation, vulnerability assessment, missing BWV of 21 July 2021, Clare's Law handling, posthumous investigation, and whether TM's death could have been avoided) and concluded that the IOPC's assessment of the investigating officer's report, the reasons given and the steps taken were within the lawful exercise of judgement and disclosed no arguable public law error.
• Procedural impropriety and Equality Act complaints were considered: the IOPC had applied an internal policy on managing unacceptable contact. Restrictions and a single nominated contact were imposed after warnings; telephone assistance and other communication channels remained available; the judge found no arguable breach of the Equality Act or procedural unfairness that would justify permission.
• Disclosure: the court applied the World Development Movement fairness test. It directed that the recording of the 12 July 2021 telephone call be considered and ordered disclosure for the limited purpose of resolving the procedural challenge. It refused disclosure of BWV from 3 August 2021 as unnecessary to determine lawfulness because the IOPC had not had possession of or relied on that footage in making its decision.

Disposition: permission to apply for judicial review was refused.

Permission to apply for judicial review was refused. The court held that the IOPC lawfully applied the statutory Schedule 3, paragraph 25 test (sub-paragraphs 25(4A), (4B) and (4C)) in reviewing whether the outcome of GMP's re-investigation was reasonable and proportionate; the IOPC did not act irrationally or procedurally unfairly, nor did it unlawfully fail to make reasonable adjustments. Disclosure of BWV from 3 August 2021 was unnecessary to determine the lawfulness of the IOPC decision, though the court ordered consideration of the 12 July 2021 telephone recording for fairness on the procedural point.