The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC in R (IPCC) v IPCC [2016] EWHC 2993 (Admin) who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

Jordan Begley died following contact with police during which a Taser had been used and he had been restrained. Police officers had been called to his house by his mother, who was concerned that Jordan might become violent. He had been drinking and was upset about having been accused by others of stealing a handbag. His mother said that he had a knife and he wanted to go outside to confront his accusers. A number of officers arrived at the scene and a Taser was used. Once tasered, Mr Begley fell to the floor and was restrained face-down. In the course of bringing him under control, one of the police officers delivered two strong punches as “distraction strikes” to Mr Begley’s back to enable him to be handcuffed. It shortly became clear that Mr Begley was very unwell and despite being taken to hospital, tragically, he died shortly thereafter.

The IPCC report into the incident, which was available to the inquest, had found that no officer had any case to answer for misconduct or gross misconduct. The inquest jury did not agree. 

The inquest jury reached a narrative conclusion that was far more critical than the IPCC report, finding that:

  • Mr Begley had died from a stress-induced cardiac arrest;
  • the use of a Taser was “not reasonable”;
  • the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;
  • there was no need for a police officer to have punched Mr Begley twice;
  • the police had not been sufficiently concerned with Mr Begley’s welfare once he was handcuffed;
  • failings by police officers had materially contributed to the death.

In light of the inquest findings the IPCC reviewed its own investigation and found errors in its own guidance and the independent investigation report. 

In the face of such public criticism of police actions it was clear that the IPCC report needed to be reconsidered, but the only mechanism to do so was for the Chief Executive to bring judicial review proceedings against his own organisation, so as to quash a report and enable a fresh investigation to take place. That claim was opposed by the police officers involved.

Counsel for the IPCC (acting highly unusually for both the claimant and the defendant) argued that the IPCC’s own guidance in force when the report was written was wrong and misleading. As the Court of Appeal had made clear in R (Chief Constable of West Yorkshire Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367, it is not the role of an IPCC investigator to reach final conclusions as to whether misconduct has been committed, or to resolve conflicting evidence, but only to express an opinion whether or not there was a case to answer. The guidance in force at the time of the report into Mr Begley’s death in 2013, however, had suggested that the investigator should determine whether it was more likely than not that the conduct alleged had taken place.

The Divisional Court (Elias LJ and Males J) had little difficulty in finding that the approach of the IPCC investigator was flawed and so allowed the claim and quashed the report. The judges noted that reports should not be quashed merely for lack of clarity of expression. For instance if there was “a mere infelicity” in the way in which the case to answer test had been expressed there would be no basis for quashing the decision. However, it was apparent that the errors ran far deeper than that. The investigator’s task was to decide if there was a case to answer and not what the answer to that case should be. On any sensible reading of this report as a whole it was plain that the investigator was reaching his own determination as to whether misconduct or gross misconduct had been committed. 

The IPCC investigator’s task was to decide if there was a case to answer and not what the answer to that case would be. 

The investigator had come to his views by following the guidance that was itself erroneous. In addition, nowhere in the report did the investigator appear to recognise that potentially conflicting factual evidence could be evaluated in a number of ways. He had not considered the factual account that was least favourable to the police and applied his mind to the question of whether a reasonable disciplinary panel  could accept that factual evidence. That error in his approach fatally undermined the validity of the report.

The law is now clear. Whilst IPCC investigators may act as filters, to determine those complaints where there is clearly no case to answer on any view of the facts, they should not be the judge and jury where there are conflicts of facts that need to be determined. Where there is conflicting evidence to resolve, statutory police misconduct procedures (and in serious cases the criminal justice system) are there to make a final determination of the facts and the consequences of the facts then found.  

Clearly in this case the inquest had demonstrated a far more searching  process than using a single IPCC investigator to explore and determine factual conflicts. The jury inquest had allowed the evidence to be tested thoroughly (including examination on behalf of Mr Begley’s family) and the jury had been able to evaluate the demeanour of the witnesses as they gave their accounts. The inquest jury having come to an assessment of the facts very different from that of the independent investigator, it would be surprising if the fresh IPCC investigation report did not conclude that the officers have, at very least, a case to answer now. 

Note, following the Lord Chief Justice's remarks in the AAIB Norfolk case, many have wondered whether future coronial inquests will be able to investigate matters already investigated by another independent expert body. However where there is credible evidence that the earlier investigation is incomplete, flawed or deficient then it will be the task (and in an Art 2 case the duty) of the inquest to investigate maters causative of death fully frankly and fearlessly regardless of what investigations have gone before - see paragraph 57. 

Addition from Elliot Gold: Police professional standards departments have been wondering recently if they can bring a judicial review against decisions of misconduct panels headed by independent legal chair. Previously, it would have been unthinkable for a Chief Constable to bring a review against a panel headed by one of his own assistant chief constables or deputy chief constable. With independent legal chairs, that reluctance no longer necessarily holds. One question has been whether a Chief Constable could bring a judicial review against a panel - whether he would be both Claimant and Defendant or if the panel had a separate legal identity. There have been a couple of applications of judicial review involving panels headed by legal chairs where the ability to bring an application has been assumed. This full decision illustrates where a member of an organisation has sought and been permitted to bring a judicial review against the organisation itself, with its permission - perhaps to be highlighted should Chief Constables seek to judicially review future misconduct hearing panels?