EMM succeeds in application for judicial review of a Police force’s handling of a complaint of serious corruption

The High Court has this week quashed a decision of the Greater Manchester Police (GMP) to retain and deal with a complaint made against it by our client Tony Rose (“the Complaint”). Instead, given that Mr. Rose alleged serious corruption by GMP officers, the Complaint ought to have been referred by the GMP to the Independent Police Complaints Commission (IPCC) as it was then called. The GMP was wrong to make its own assessment of the merits of the Complaint in determining whether to refer it to the IPCC. Mr. Rose’s successful application for judicial review has led to an apology by the GMP and an undertaking that the Complaint will now be referred to the Independent Office of Police Complaints (IOPC), as the IPCC has now become. The IOPC will now determine whether investigation is necessary.

The case turned primarily on the interpretation of the Police Reform Act 2002 (“the Act”) and the Police (Complaints and Misconduct) Regulations 2012 (“the Regulations”) as they applied when Mr. Rose made the Complaint in July 2017. There was no previous authority on the principal point in issue, namely the circumstances in which a Police force is obliged to refer a complaint of serious corruption to the IPCC. The Act has been amended and the Regulations have since been replaced by the Police (Complaints and Misconduct) Regulations 2020. The relevant provisions have, however, remained materially identically-worded. So, Mr. Rose’s case now is authority on how a Police force must deal with such a complaint under the current law.

Mr. Rose ran a business in Wigan and, in 2014, began to suspect that staff were stealing from it. He reported his concerns to the GMP who, over the next two years or so, and with a number of referrals to the Crown Prosecution Service (CPS), carried out an investigation. The ultimate conclusion of the CPS was not to charge any suspects, on the basis that there was no realistic prospect of conviction.

Mr. Rose has always believed that relevant evidence had been deliberately withheld from the CPS, that the CPS had been lied to, evidence had been tampered with and that relevant lines of inquiry were not pursued by the GMP. He said that the GMP had “practiced nepotism and thereby corrupted the case”. He particularised in the Complaint what he said were the GMP’s defaults and he alleged that they were due largely to the suspects being either related to a serving police officer or friends of that officer. He said that the investigating officers had “perverted the course of justice”. On any view, what Mr. Rose alleged against GMP officers would clearly fall within a layperson’s understanding of the term ‘serious corruption’.

After a similar complaint in 2016, the Complaint was determined at local level by an Inspector of the GMP; the Complaint was rejected. Mr. Rose appealed that rejection, partly on the basis that the Complaint was not suitable for local resolution and met the statutory criteria for referral to the IPCC. It was the rejection of that appeal by the GMP’s Appeals Officer that was the decision subject to the application for judicial review. Mr. Rose argued that the Complaint met the criteria for mandatory referral to the IPCC and that the Appeals Officer should have upheld his appeal on that basis. He sought an order quashing the decision of the Appeals Officer and referring the Complaint to the IOPC.

What did the court decide?

Paragraph 4 of Schedule 3 to the Police Act 2002 read at the relevant time (as far as is relevant):

“4  Reference of complaints to the Director General [of the IOPC]

(1)   It shall be the duty of the appropriate authority [Police force] to refer a complaint to to the Director General if—

…(b)  the complaint is of a description specified for the purposes of this sub-paragraph in regulations made by the Secretary of State;”

The Regulations provided, again so far as is relevant:

            “4.— Reference of complaints to the Commission

(1)  For the purposes of paragraph 4(1)(b) of Schedule 3 to the 2002 Act (reference to the Commission of any complaint of a specified description), the complaints set out in paragraph (2) are hereby specified.

(2)  Those complaints are—

(a)  any complaints not falling within paragraph 4(1)(a) of that Schedule but alleging conduct which constitutes—

…(iii)  serious corruption, as defined in guidance issued by the Commission;”

At paragraph 8.13 the Guidance includes within the definition of serious corruption:

“any attempt to pervert the course of justice or other conduct likely seriously to harm the administration of justice, in particular the criminal justice system;

payments or other benefits or favours received in connection with the performance of duties amounting to an offence for which the individual concerned, if convicted, would be likely to receive a sentence of more than six months;”

Mr. Rose’s case was that a Police force to whom a complaint is made must make a decision whether to refer the complaint to the IPCC/IOPC on the basis of the conduct alleged in its particulars. If the alleged conduct particularised met the definition of serious corruption in the Guidance, the complaint was to be referred. Since Mr. Rose had particularised his allegations in the Complaint, and that the particulars amounted to serious corruption, the Complaint met the mandatory referral criteria in the Act and Regulations.

The GMP contended that the Police force’s decision on whether to refer should go beyond the mere allegations and must involve an assessment of the merits or substance of a complaint.

The judge, HHJ Eyre QC sitting as a High Court judge, found that on the clear wording of – and the purpose behind – the Act and the Regulations, it was not for a Police force when deciding whether to refer a complaint to the IPCC/IOPC to consider the merits of it. Rather, it should look at the conduct alleged. To reach the stage of an assessment for the purpose of referral to the IPCC/IOPC a complaint would already have passed the initial screening that weeds out complaints that are that ‘vexatious, repetitious or fanciful’. Thereafter, if the conduct alleged, on an objective interpretation, falls within the definition of serious corruption, then the grounds for referral were made out. Whether such a complaint merits investigation is then a matter for the IPCC/IOPC.

Such an interpretation accords with the importance placed by the Guidance on referring allegations of serious corruption to the IPCC/IOPC without delay, even in cases of doubt. This is to ensure public confidence in the Police complaints system.

Applying that interpretation to the Complaint, the judge held that, read in context, it did allege serious corruption, as defined in the Guidance. In particular, Mr. Rose alleged conduct that would amount, if made out, to perverting the course of justice. The Appeals Officer should therefore have concluded that the Complaint alleged serious corruption and referred it to the IOPC. His decision to the contrary was therefore quashed.

In light of the GMP’s undertaking no further order was necessary.