In Gilchrist v Chief Constable of Greater Manchester Police [2019] EWHC 1233, the High Court considered officers’ use of force in the context of use of CS gas and a taser repeatedly upon a man who was autistic and mentally distressed and found that its continued use became unlawful. Whereas the initial use of CS gas and Taser were justified, once the police learned of the male's vulnerability as an autistic man and noted that his behaviour was defensive rather than aggressive, a more cautious approach should have been adopted.

The Court of Appeal in (1) Capita Customer Management Ltd v Ali & (2) Chief Constable of Leicestershire v Hextall [2019] EWCA Civ 900, has overturned the Employment Appeal Tribunal and held that employees do not unlawfully discriminate against men when when paying them less for shared parental leave than they pay women when taking enhanced maternity pay as part of maternity leave. Such claims are not sex discrimination claims but equal terms claims, to be brought under the Equal Pay Act 1970, which are bound to fail because they relate to terms of work affording special treatment to woman in connection with pregnancy of childbirth. An appeal to the Supreme Court is possible.

The National Police Chiefs Counsel has released updated operational guidance reinforcing pre-charge bail as a legitimate tool in investigating crime and protecting the public following a decrease its use since 2017.

The NPCC states the following:

Legislative changes to pre-charge bail through the Policing and Crime Act 2017 introduced the presumption that suspects should be released from police detention while remaining under investigation, known as ‘released under investigation’, unless bail is deemed both necessary and proportionate. The Act also introduced statutory time limits and judicial oversight of extensions of bail beyond three months.

Concern that pre-charge bail has fallen considerably, including in domestic abuse, sexual offences and cases involving vulnerable people, has prompted the new guidance.   

Where a court finds a wrongful arrest, it is often due to inadequate grounds for belief in its necessity. However, a brief judgment in Smith v Police Service for Northern Ireland [2019] NIQB 39 is a demonstration of where there is a lack of reasonable suspicion that the person arrested has, themselves, committed the offence. Also of interest is the sum for damages – £3,550 for the unlawful arrest and ten hours’ consequent unlawful detention.

Every police officer knows they must have a reasonable suspicion that a person has committed an offence in order to arrest them. But that is only half of what is required. The second element is that they must have a reasonable belief in the necessity for the person’s arrest. The recent decision of Commissioner of the Metropolitan Police v MR [2019] EWHC 888 (QB) is one of a number of recent cases where appellate judgments have sought to tighten-up what the police must show in order to prove necessity.

In the instant case, a woman ‘A’ and her partner ‘MR’ had been in a relationship for fifteen months. A complained to the police about MR, who could not be traced save for a mobile telephone number. A police officer called MR on 11 January 2010, who then attended a police station for voluntary interview on 12 January 2010. Whilst at the police station and before being interviewed, MR was arrested on suspicion of harassment. He was interviewed, photographed, and had his fingerprints and DNA samples taken. After nearly seven hours, the police released him on conditional bail. He claimed that the arrest and consequent detention was unlawful and was subsequently successful in the county-court. The Comissioner appealed to the High Court.

In the case of Eiseman Renyard and Others v United Kingdom (2019) Application no. 57884/17, the European Court of Human Rights has declined to disturb the decision of the Supreme Court in R (Hicks) v Comr Metropolitan Police [2017] UKSC 9; [2017] AC 256, concerning the arrest and detention of royal wedding protesters, for breach of the peace. 

As stated in the blog post discussing the decision of the Supreme Court, the police arrested a number of individuals on 29th April 2011, which was the day of the royal wedding, took them into police custody and released them without charge once the pageant was over. The justification was that the arrests were said to be necessary to prevent an imminent breach of the peace - the violent disruption of the wedding. No-one was brought before a court as foreseen by article 5(1)(c) of the Convention.

In Catt v United Kingdom [2019] ECHR 76, the European Court departed from and disagreed with the Supreme Court, holding that the police's collection and retention of data of a peaceful protestor was an unlawful interference with article 8 of the Convention.

Mr Catt was a 94-year-old man from Brighton; a peaceful protestor who regularly attended public demonstrations since 1947. In 2005, he began attending demonstrations held by ‘Smash EDO’. Although there was often serious disorder and criminality at Smash EDO’s protests, Mr Catt only ever attended in a peaceful capacity and was never charged with anything.

In 2010, he made a ‘subject access request’ to the police, to identify what records, if any, they held on him. The police disclosed sixty-six entries identifying his attending protests between 2005 and 2009. Some were EDO Smash protests, many were other protests. All of these records were held on the police’s “Extremism Database”.

The Association of Chief Police Officers, ‘ACPO’, refused to delete the entries on Mr Catt. They failed to give any reasons for this refusal, and so Mr Catt judicially reviewed ACPO’s decision. In so doing, he claimed a breach of his article 8 right to privacy.

In R (CL) v Chief Constable of Greater Manchester & Secretary of State for the Home Department [2018] EWHC 3333 (Admin), the Divisional Court held that the retention by the police of crime reports which related to sexting incidents in which a schoolboy had allegedly been involved did not breach his rights under Article 8 ECHR.

The decision confirmed that the retention of data by the police in accordance with the prevailing regulatory and statutory data protection framework and relevant guidance was in accordance with the law for the purposes of Article 8(2) whether the alleged offender was an adult or a child.

The duty to have regard to the need to safeguard and promote the welfare of children did not mandate the deletion of data: the best interests of any children concerned was a primary, but not determinative, consideration.

A defendant cannot defend himself from prosecution for breach of a Community Protection Notice (‘CPN’), on the basis that the CPN is invalid. The reason, stated in Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin), is that there is an effective means to challenge the CPN - either by exercising the right of statutory appeal or by judicial review. Allowing a challenge to the validity of the CPN at trial is not what the relevant statute (the Anti-social Behaviour, Crime and Policing Act 2014, ‘the 2014 Act’) intends, nor is it an effective remedy because the person subject to a CPN should not be required to breach a CPN in order to exercise a right to challenge it.

In Bennett v Chief Constable of Merseyside [2018] EWHC 3591 (Admin), the High Court confirmed that a district judge was correct to make no order for costs against the police after it withdrew its Proceeds of Crime Act 2002 (‘POCA’) s.298 application for cash forfeiture. In considering the decision of the district judge, the High Court reaffirmed three points:

(i) The starting point is that no order for costs should be made provided that the public authority has acted reasonably and properly;

(ii) In determining whether the police acted reasonably and properly, the court should scrutinise the behaviour of the police with care; and

(iii) It may be justifiable to award costs against the police, particularly where the successful private party would suffer substantial hardship if no order for costs were made in their favour.

In Griffiths v (1) Chief Constable of Suffolk (2) Suffolk NHS Foundation Trust [2018] EWHC 2538 (QB), the High Court dismissed claims that the Chief Constable and the NHS Trust were negligent in breaching their duties of care or had breached human rights. The case is interesting for reaffirming three points:

(i) the law will generally not impose liability on a defendant for failing to prevent harm caused by someone else;

(ii) obligations under Article 2 (right to life) or Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) will not arise where the institution does not know of a real risk that those rights would be breached; and

(iii) where there is a protective duty in respect of ECHR, Articles 2 or 3, a breach of Article 8 (respect for private and family life) cannot succeed where Articles 2 or 3 are not themselves breached.

The new Investigatory Powers Tribunal Rules 2018 came into force on 31 December 2018, revoking the 2000 rules: See here. The 2018 rules apply to all section 7 Human Rights Act 1998 proceedings before the Tribunal and all covert investigatory powers complaints under section 65 of the Regulation of Investigatory Powers Act 2000, including those which were made before the new rules came into force.

The case of R (Application of the Centre for Advice on Individual Rights in Europe) and (1) Sec State Home Dept (2) Commissioner of Police of the Metropolis [2018] EWCA 2837 (Civ) holds that police officers have the power to do anything that an ordinary citizen can do.

The latest decision of the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 is important for all police lawyers. The facts are quite detailed but, essentially, where the police perform an unlawful arrest (which would result in unlawful detention), the arrested person will receive only nominal damages where they could and would have been lawfully arrested had the correct procedures been followed.

There is also a second element – which is that the question of whether the police have a reasonable suspicion for the purpose of making an arrest ought to be considered in the round; courts ought not to over-compartmentalise the issue by analysing each factor separately.

The PACE Codes of Practice are available on the Home Office site, on a recently updated page. It states the most recent version of each Code, together with previous versions of the codes and the dates they came into force. The page is here: 

https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.

The Home Office has issued revised Guidance on the use of covert surveillance or human intelligence sources by public authorities under part 2 of the Regulation of Investigatory Powers Act (RIPA) 2000.

The codes of practice also provide guidance on entry or interference with property or wireless telegraphy by public authorities under section 5 of the Intelligence Services Act 1994 or part 3 of the Police Act 1997.

The link to the documents is here

As we head into the next legal term, it is worth noting the pilot scheme that came into effect at the end of July 2018 when some lawyers were downing-tools for a short summer break. The Family Procedure Rules has a new Practice Direction 36H, which sets up a pilot scheme to allow for the following protection orders to be served on the police at a centralised email address:

- Forced marriage protection order under Family Law Act 1996 s63A;

- FGM protection order under Female Genital Mutilation Act 2003 under Sch 2, Part 1, para 1(1).

This applies to orders made in the High Court or Family Court between 23 July 2018 and 25 January 2019. Where the court makes a protection order, it must be emailed to the centralised email address created and monitored by the Vulnerability Coordination centre, namely This email address is being protected from spambots. You need JavaScript enabled to view it..

The link to the practice direction on the justice.gov.uk website does not work (it should be here) but the Law Society have a pdf copy of it here

As part of ‘dialogue’ with other common law jurisdictions, the Court of Appeal of the Republic of Singapore (Singapore’s highest court) in Tat Development PTE Ltd v Management Corporation of Grange Heights Strata Title Plan No 301 [2018] SGCA 50 has declined to follow the UK Supreme Court on extending the tort of malicious prosecution to civil proceedings. The Supreme Court recently held by a slim margin of 5-4 in Willers v Joyce [2016] UKSC 43; [2016] 3 WLR 477 that the tort of malicious prosecution be extended to cover the bringing of civil proceedings. This was a highly controversial decision attracting much academic comment. The Singaporean Court of Appeal has expressly declined to follow it, adopting the reasoning of the minority in Willers, in particular that of Lords Sumption and Mance.

Although not strictly a police case, the judgment together with the two earlier cases that the Supreme Court sought to resolve - Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419 (HL) and Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366 delve deeply into the history of malicious prosecution and are an education as to the tort’s development and meaning.

The High Court has held in Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) that qualified one-way costs shifting (‘QOCS’) protection does not apply automatically in proceedings where a claimant is advancing both a claim for damages for personal injury and a claim other than a claim for damages for personal injury (a ‘mixed claim’).

The Home Office has published:

- Frequently asked questions on the barred and advisory lists; and

- Amended Home Office guidance on police misconduct.

The Home Office states that the changes include:

- further guidance on the regulations for former officers including whether they apply to cases of misconduct taken under Conduct Regulations issued prior to 2012

- clarification that police staff members who are under local probationary rules equivalent to Regulation 13 of Police Regulations 2003 will not be included on the barred list

- triggers and process for the advisory list have been made clearer and explanation of the process of automatic removal from the advisory list which exists for designated volunteers.

https://www.gov.uk/government/publications/circular-0172018-updated-home-office-guidance-on-police-misconduct

 


The Supreme Court in R (AR) v CC Greater Manchester Police [2018] UKSC 47 upheld the inclusion of information in an enhanced criminal record certificate (ECRC) that a person had been acquitted of rape. The judgment shows the importance of chief officers considering with great care the various factors in order to strike a fair balance between the rights of the individual applying for the ECRC as opposed to the wider rights of the community, including vulnerable persons.

The working assumption of most police lawyers is that a common law duty of care will not arise where call handlers tell 999 callers that the police will attend and assist. The judgment in Sherratt v Chief Constable of GMP [2018] EWHC 1746 (QB) demonstrates that a more careful analysis is required. In this case, some fairly common and non-specific assurances were sufficient to give rise to a duty of care.

The Supreme Court has held in James-Bowen & Ors v Commissioner of Police of the Metropolis [2018] UKSC 40 that the Commissioner owed no duty to protect the economic and reputational interests of officers whose alleged misconduct formed the subject of a civil claim, which the Commissioner had settled.

The officers had been involved in executing the arrest of BA at BA's home in December 2003. BA accused the officers of having assaulted and abused him, allegations which received widespread media coverage. He brought a civil claim against the Commissioner, who was vicariously liable for the officers’ actions and who settled the claim with an admission of liability (relating to the officers’ alleged wrongdoing) and payment of compensation. The officers were not parties to the civil claim and had declined to give evidence at the trial due to fears for their own safety following the release of their identities into the public domain by the Independent Police Complaints Commission, now the Independent Office for Police Conduct. After the civil claim was settled, the officers were prosecuted in the Crown Court: a jury speedily acquitted them following disclosure of a probe in BA's home which undermined his version of events.

The officers brought claims against the Commissioner, as their quasi-employer, for having failed to protect their interests in the conduct of the civil litigation including the settlement of the claim.

The recent decision of Holmes v CC Merseyside Police [2018] EWHC 1026 (QB) confirms the power of the police to arrest individuals who are not acting unlawfully. It relies on the earlier case of CPS v McCann [2015] EWHC 2461; [2016] 1 Cr. App. R. 6, which held that an arresting officer was acting in the execution of their duty when making an arrest notwithstanding that their suspicion that that offences were being committed being mistaken.

Challenges to a failure to adjourn seem to be popping-up at the moment. There was the recent decision of the Court of Appeal in Solanki v (1) Intercity Telecom Ltd (2) Guidinglight Finance Ltd [2018] EWCA Civ 101 – where a judge had failed to give adequate reasons for rejecting medical evidence justifying an adjournment. By contrast, in the recent decision of Lindsay v Solicitors' Regulatory Authority [2018] EWHC 1275 (Admin), the respondent in misconduct proceedings failed to advance adequate evidence to support such an application. What lies deeper beneath, however, is whether an appeal against a decision not to adjourn requires the appellate court or tribunal to consider whether the original decision lay within the range of reasonable responses open to the decision maker below or, alternatively, has to determine the question of fairness / correctness itself.

The determinations of Selected Medical Practitioners (SMPs) made under the various Police Pensions Regulations and the Police (Injury Benefit) Regulations 2006 are, in many cases, supposed to be final unless or until they are appealed. Subsequent SMPs, Police Medical Appeal Boards and, on occasion, the lawyers acting for both officers and police pension authorities, seem prone to forget this principle. When they do, the High Court always welcomes them with open arms and a consistent eagerness to remind them that careful adherence to the statutory procedures for injury on duty awards is in everyone’s long-term interest. 

The case of R (Evans) v Chief Constable of Cheshire Constabulary and Police Medical Appeals Board [2018] EWHC 952 (Admin) is the latest case to confirm this principle. While there is little in the decision that ought to come as a great surprise, the judgment does include an unambiguous critique of the decision in R (Doubtfire & Anor) v Police Medical Appeal Board [2010] EWHC 980 (Admin), which ought no longer to be regarded as good law. It also gives clear advice to SMPs and PMABs, who may be considering the question of an injury on duty award years after the first determination under the Police Pensions Regulations 1987.

The Family Division of the High Court in G v G (Chief Constable of Dorset Police intervening) [2018] EWHC 1100 (Fam) ordered that the service and disclosure of a CAFCASS report be delayed for a week in order to allow an effective police investigation into allegations that the father had sexually abused one of the children. The judgment of 4 May 2018 was delivered in private and Holman J gave leave for an anonymised version to be published one week later, stating that the decision had been made upon the Court “being asked to take a very unusual course” in “a very unusual application”.

Just a very short point on proceeding in misconduct hearings in the absence of defendant officers, following the judgment in Sanusi v GMC [2018] EWHC 1388 (Admin). 

The position on proceeding in absence of a defendant officer in police misconduct hearings was always thought to mirror that in criminal proceedings - and for good reason. The central authority of R v Jones (Anthony) [2003] 1 AC 1, setting out the very high bar to proceeding in criminal actions was followed by Tate v The Royal College of Veterinary Surgeons [2003] UKPC 34, which adopted that test for disciplinary hearings. It is worth noting that although Tate was heard by the Privy Council, it did so as a first (and only) tier appeal tribunal. Regardless, the position in Tate no longer holds.

The Divisional Court in R (Mason) v (1) Winchester Crown Court (2) Chief Constable of Hampshire [2018] EWHC 1182 (Admin) has set out proper procedures to follow in appeals heard in the Crown Court concerning the refusal or revocation of firearm and shotgun certificates. This brings some structure to what has sometimes appeared to be the Wild West of shotgun hearings.

Dogs and property throw up some of the more unusual and difficult issues on which a police lawyer is asked to advise. In the decision of Henderson v Comr of Police of the Metropolis [2018] EWHC 666 (Admin) and the subsequent costs decision at [2018] EWHC 1092 (Admin), the court visited two issues - the standing of a person to intervene in a case concerning the destruction of a potentially prohibited breed and kennelling costs during the course of an appeal by way of case stated / judicial review to the High Court.

R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) is the case of an officer who wanted to resign in order to take up a position as a minister in the Church of England. He was suspended and not permitted to resign, so that the IPCC (as it then was) could investigate his conduct in connection with the arrest of Sean Rigg who died in custody at Brixton Police Station in 2008.

Before the “former officer” provisions were introduced by the Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017, the IPCC could investigate the conduct of an officer, serving or retired but a case to answer decision and disciplinary proceedings could only be taken in relation to a serving officer. In 2003, the Home Secretary issued guidance (Circular 55/2003) to the effect that the power to suspend could be used to prevent a resignation and thereby ensure the completion of disciplinary proceedings. If an officer was suspended, they had to seek the permission of their Chief Officer to resign or retire. 

In PC Birks’ case, his resignation had been accepted by the Metropolitan Police in 2014, notwithstanding the new IPCC investigation. But this acceptance was rescinded, under pressure from the IPCC and Mr Rigg’s sister - and PC Birks was suspended precisely to prevent him from resigning. PC Birks first challenged this in a judicial review claim. He alleged that that being required to remain a police officer breached Article 8 (privacy) and Article 9 (religion) of his Convention Rights. Further, that it amounted to an unlawful departure from a substantive legitimate expectation because the Metropolitan Police had already accepted his resignation.

The Secretary of State for the Home Department has recently published two Codes of Practice – one new and one revised – which provide guidance on the appropriate and proportionate use of powers under the Proceeds of Crime Act 2002 ('POCA') - note that the enactments on legislation.gov.uk have not, at the date of this blog post, been updated to reflect recent amendents. These Codes came into force on 16 April 2018. They were drafted in order to take account of various amendments made to POCA by the Criminal Finances Act 2017 ('CFA'), which received Royal Assent on 27 April 2017. 

The Employment Appeal Tribunal has handed down judgment in the appeal case of Hextall v Leicestershire Police UKEAT/0139/17/DA. Mr Hextall is a police officer who took Shared Parental Leave. However, under the informal national policy that exists at the current time in relation to the payment of such leave, he was paid only at the statutory rate and not the enhanced rate paid to mothers taking maternity leave.

Mr Hextall argued that that policy put men at a particular disadvantage compared to women because it acted as a financial disincentive to their taking such leave where mothers had the alternative option of taking maternity leave. As such, he said, it constituted unlawful indirect sex discrimination. Hextall is linked to another (non-police) case, Capital v Ali UKEAT/0139/17/DA. 

In short, the Employment Appeal Tribunal decided that a failure to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave potentially constitutes indirect sex discrimination. Jonathan Davies represented Leicestershire Police in both the employment tribunal and the Employment Appeal Tribunal.

Where a police officer makes an unsuccessful application for a panel to recuse itself on the grounds of perceived (or actual) bias, can he apply for judicial review of the decision before exhausting his 'internal' right of appeal (under rule 4(4)(c) of the Police Appeals Tribunal Rules 2012)?

The law in foreign, common-law jurisdictions is different but a similar question in relation to a doctor and a misconduct panel was answered affirmatively by the Supreme Court of Appeal of South Africa in Basson v Health Professions Council of South Africa [2018] ZASCA 1.

The hits for the police keep on coming. The decision in Commissioner of the Metropolis v (1) DSD (2) NBV [2018] UKSC 11 confirms that the police can be liable in proceedings for a breach of article 3’s prohibition on inhuman and degrading treatment (and possibly article 4’s prohibition on slavery) where they fail to perform an adequate criminal investigation into alleged serious ill-treatment.

This decision was less of a surprise than Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 – given the strength of the earlier judgments both at first instance and in the Court of Appeal. That said, it is hard to say anything other than that the courts are slowly but surely eroding out of existence the police’s ‘immunity’ from claims arising out of the performance of its core duties.

Where an officer is dismissed at a fast-track hearing, based upon a conviction which is then subsequently overturned, a Police Appeals Tribunal ('PAT') will likely allow the misconduct appeal. In such circumstances, there has been no finding on the merits in misconduct proceedings to prevent the officer from facing a subsequent standard-track hearing. So said the Court of Appeal in CC Nottinghamshire v R (Gray) [2018] EWCA Civ 34.

The appeal concerned the application of the form of res judicata known as cause of action estoppel to two hotly contested sets of police disciplinary proceedings, against a backdrop of criminal proceedings - all in respect of the same events.

When must a police misconduct hearing adjourn the proceedings for the attendance of the respondent officer or even a witness? The Police (Conduct) Regulations 2012 reg 33 [beware that the linked statutory instrument is now out of date, but not on this particular regulation] provides that a legally qualified chair (LQC) may adjourn the hearing in particular circumstances:

(3) Subject to paragraph (4), the person conducting or chairing the misconduct proceedings may from time to time adjourn the proceedings if it appears to him to be necessary or expedient to do so.

(4) The misconduct proceedings shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any witness or interested person to attend.

The meaning of exceptional circumstances presumably refers to circumstances that are an exception to the norm rather than those which are extraordinary. Regardless, the latest case from the Court of Appeal on adjournments in civil cases, Solanki v (1) Intercity Telecom Ltd (2) Guidinglight Finance Ltd [2018] EWCA Civ 101 is worth reading. 

In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the Supreme Court made significant inroads into the  principle that the police cannot be sued in negligence save in exceptional circumstances as a result of alleged failures in their core operational duties. Now, where a third party such as a pedestrian is injured as a result of a negligent arrest on the street by a police officer, the police are liable in negligence where that injury was a reasonably foreseeable consequence of the police’s actions

This is the most important police law case for a generation. It goes to the heart of when a duty of care will be imposed on the police for the performance of their operational duties. The news is very bad if you are a Chief Constable. The news is very good if you are a claimant (or defendant) lawyer.

When a person convicted in the Crown Court has an additional prison term enforced by the Magistrates for having only part paid off a confiscation order, he is entitled to a reduction in that term proportionate to the money that has been paid. R (Gibson) v Secretary of State for Justice [2018] UKSC 2; [2018] 1 WLR 629 confirmed that the starting point for calculating this reduction is the original sum ordered by the Crown Court, and not the larger sum including interest that had accrued by the date of the Magistrates’ enforcement.

What are the practical consequences of the removal of judicial immunity for police misconduct panels in discrimination cases? This article considers the acts that give rise to a cause of action, the common scenarios in which these could arise and the practical steps to take to address or avoid such issues. 

In P v Comr of Police of the Metropolis [2017] UKSC 65, the Supreme Court held that the Chief Constable was vicariously liable for decisions of (old style) police misconduct hearing panels where they make decisions which amount to discrimination contrary to Equality Act 2010, where this transposes the causes of action stated in the Framework Directive. 

As we have said previously, the effect of the decision in P is limited to those causes of action which derive from EU law. It can have no application to, for example, whistleblowing claims are purely a matter of English law, not derived from EU directives. Furthermore, it may be that a careful reading of the appropriate Directive may provide a ‘get out’ clause if the right being asserted in the employment tribunal does not derive from EU law. 

The IOPC today replaces the Independent Police Complaints Commission Commission. The Home Office has stated that the IOPC will have the powers to:

- initiate its own investigations without relying on a force to record and refer a particular case for investigation;

- reopen cases it has closed where there are compelling reasons, such as new evidence;

- increase its independence from the police by abolishing ‘managed’ and ‘supervised’ investigations;

- investigate all disciplinary investigations against chief officers; and

- present cases against officers in the police disciplinary process when the force disagrees with the IOPC’s findings.

The announcement is here. The website of the IOPC is https://policeconduct.gov.uk

Revised Guidance has been published on 24 December 2017. The Home Office website states:

New guidance on the use of anti-social behaviour powers will help police and councils continue to take appropriate action against nuisance behaviours while ensuring the most vulnerable, including the homeless, are not disproportionately targeted.

The Police (Conduct, Complaints and Misconduct and Appeal Tribunal)(Amendment) Regulations 2017 came into force on 15th December 2017 and have made a number of important changes to police misconduct procedures. The four central changes to be aware of are:

(a) The removal of the need for officers under investigation to obtain the consent of the Appropriate Authority before resigning or retiring;

(b) The introduction of a new procedure to proceed with misconduct investigations and hearings notwithstanding that the officer concerned has left the police service;

(c) A new power to misconduct hearing panel Chairs to provide information relevant to the barred list; and

(d) An amendment to the Police Appeals Tribunals Rules 2012, allowing former officers to appeal against the findings of a misconduct panel.

A short post on a change in the Home Office Guidance. It now states that the selection of LQCs should be on a "fair and transparent basis". Good practice will be selection through a "rota system". A rota system may not necessarily work with LQCs' other professional commitments. Often, appropriate authorities will inform all LQCs of a hearing and select them on a 'first-come, first-served' basis. That said, if more than one LQC responds, there is no reason why a rota system cannot then apply. Note, also, that the Guidance suggests that the manner of selection should be made clear to all parties to the hearing, which really means the respondent officer(s).

The relevant part of the HO Guidance is as follows: [emphasis added]

2.215. The appropriate authority is responsible for appointing all three panel members. The LQC must be chosen from a list of candidates which is selected and maintained by the local policing body through the process described in Annex F. The appropriate authority should select the LQC at the earliest opportunity following the decision to refer to misconduct proceedings. In accordance with procedural fairness and principles of natural justice, the selection of the LQC should be on a fair and transparent basis. Good practice will be selection through a rota system by which the next available LQC is selected for the next hearing. Bad practice will be to select on the basis of which LQC will be more likely to give the verdict required. The manner of selection should be made clear to all parties to the hearing.

The case of Durrant v Chief Constable of Avon & Somerset Constabulary [2017] EWCA Civ 1808, which arose out of the arrest of Ms Durrant on 13 June 2009, seems finally to have come to a conclusion, after three visits to the Court of Appeal. It is worth reading for its discussion on the award of damages for injury to "loss of feelings" where the police have racially discriminated against a person whom they have arrested and when aggravated and/or exemplary damages will be awarded.


The Independent Review into Serious Incidents and Deaths in Custody undertaken by Dame Elish Angiolini is an important work, making 110 recommendations for improvement. The following paragraphs address some of the key-findings relevant to the police

On 23 July 2015, the then Home Secretary, the Rt. Hon Theresa May MP announced a major review into deaths and serious incidents in police custody. In October 2015 Dame Elish Angiolini was appointed as its independent chair.

The independent review was tasked with looking at the issues surrounding deaths and serious incidents in police custody. This included the events leading up to such incidents as well as existing protocols and procedures designed to minimise the risks. It looked at the immediate aftermath of a death or serious incident and the various investigations that ensue. Importantly it also examined how the families of the deceased are treated at every stage of the process.

The report, which was published on 30 October 2017,  makes 110 recommendations for improvement, categorised under twelve thematic headings: restraint, custody environment, health and wellbeing, funding for families and family support, communications, investigations, coroners and inquests, accountability, training, learning, statistics and research.