Glenn Skelton, R (on the application of) v Director-General of the Independent Office for Police Conduct

The power to require re-investigation under section 13B(2) of the Police Reform Act 2002 must be exercised according to the IOPC’s published policy. Under Condition A, the decision maker asks whether an identified flaw might have affected subsequent decisions on discipline, performance or referral to the CPS. A balance-of-probabilities test is impermissibly high. The separate outcome issue permits a flexible assessment of the likely extent to which the flaw affected the investigation or later proceedings. Condition B requires consideration of genuinely new and significant information, including information not actually available to the original investigator. Where the original investigation did not trigger conduct or criminal proceedings, the relevant paragraph 21A or 24A decision may itself be the material decision. Failure to apply these criteria, and failure to consider relevant seriousness and accountability factors, renders the decision unlawful.

The claimant, the father of Lewis Skelton, sought judicial review of the Director-General’s decision not to order a re-investigation into the death of his son, who had been shot by an armed police officer. The original IPCC investigation concluded that there was no indication that the officer may have committed a criminal offence or behaved in a manner justifying disciplinary proceedings.

Following an inquest jury’s conclusion of unlawful killing, the IOPC identified flaws concerning the officer’s account of Mr Skelton’s speed and alleged threatening behaviour, but concluded that there were no compelling reasons for re-investigation. The issues were whether the IOPC had correctly applied its policy, including Conditions A, B and C, and whether its decision was irrational or otherwise unlawful.

1. The claim succeeded. The decision not to re-investigate was quashed and ordered to be remade in accordance with the judgment.
2. Section 13B(2) of the Police Reform Act 2002 applies only to concluded independent or directed investigations. The Director-General must be satisfied that there are compelling reasons, and the discretion is constrained by the IOPC’s published policy.
3. Condition A is satisfied where a flaw in the original investigation might have affected subsequent decisions on discipline, performance or referral to the CPS. The policy did not require the decision maker to be satisfied on the balance of probabilities that the outcome would have been different. The low thresholds applicable to paragraph 21A, case-to-answer and CPS-referral decisions were relevant.
4. The separate outcome issue is considered only after Condition A or B is met. It has a wider focus, extending to the outcome of the investigation and any disciplinary or performance proceedings or CPS referral. It requires an assessment of the likely extent of impact, not a distinct probability threshold.
5. Condition B concerns information that was not in fact available to the original investigator. It cannot be treated as available merely because the investigator could hypothetically have asked a further question. The officer’s inquest evidence about Mr Skelton’s staggering or stumbling was significant new information, required further investigation and created a real possibility of different decisions.
6. The paragraph 21A and 24A decisions were substantive decisions. They determined whether the matter remained a DSI investigation or became a conduct investigation and prevented subsequent criminal or misconduct decisions from arising.
7. The Condition C assessment was also unsound. The IOPC had failed on the face of its review to consider the seriousness of the allegations and the absence of previous disciplinary proceedings. Its erroneous Condition A analysis also materially permeated the public-interest assessment. Article 2 considerations were relevant.

First-instance judicial review proceedings in the Administrative Court. The claim was allowed, the IOPC decision was quashed, and the decision was ordered to be remade.