Page 29 - Top Cover Issue 8

TOP COVER ISSUE 8 29

In the context of investigations into principle protecting officers from unfair submitted, it is likely that it will offer
the conduct of police officers, the recent purported determinations by those some basic legal protection to the officer,
case of Chief Constable of West Yorkshire writing investigation reports, including and it will necessarily be considered by
v IPCC & Others [2014] EWCA Civ the IPCC. Given the clear failure of the the IPCC (and potentially the CPS) at
1367 sets an important precedent for IPCC investigators to understand the the investigation stage. Further specific
officers nationally, particularly where proper limit of their role, the Court of details can follow either by an officer
cases are investigated by the IPCC. Appeal observed that “… it may be that answering the questions in an interview
The Court of Appeal confirmed that there is a need for further training of after the submission of a statement or by
the person writing the investigation investigators as to the manner in which the submission of a further statement/s.
report is not permitted to express such reports should be prepared.” Any decision by the IPCC (or other
conclusions in any way that appears It should be obvious that the IPCC investigator) is more open to legal
to ‘determine’ whether the officer has can only determine whether an officer challenge if the basic legal justification
committed a criminal offence or is guilty has a case to answer after the matter has has formed part of the evidence provided
of misconduct. All that the investigator been properly investigated. The IPCC to the investigation. Such legal challenges
can do is express an opinion on whether will need to consider the legal and factual may be available to the officer during or
the officer has a case to answer and after the investigation stage and prior
whether the evidence appears to ‘indicate’ to the commencement of criminal or
unlawfulness, etc. This is different misconduct proceedings.
from ‘determining’ that it does. It is a In another Court of Appeal decision
significant distinction. recently held in R (Delezuch) v CC; R
The following points of principle will v (Duggan) v ACPO [2014] EWCA
apply to all cases investigated by the Civ 1635, where the obligation on
IPCC: participating officers to provide a
1. In making the findings in the case meaningful first account is recognised as
under appeal, the investigators reasonable and necessary in principle as
assumed the role of judge and jury part of the College of Policing’s ‘Armed
in expressing certain determinations, Policing Authorised Professional Practise’
including that the arrest was unlawful manual for fatal firearms incidents.
and the officer’s conduct amounted to Limitations in the manual as to
assault. The IPCC had no power to conferring were approved. At paragraph
make such findings. 60, Lord Justice Richards stated: “…
2. The investigation report is to indicate it does seem to me to be important to
the investigator’s opinion as to ensure that the initial account contains
whether there is a case to answer. A greater detail than in some examples we
case to answer in that context means a issues before making such an assessment. were shown from the Duggan case.”
case to answer before a criminal court It appears to me that in most cases the This cultural shift requires a practical
and/or a disciplinary tribunal. affected officer will need to place on response that will protect vulnerable,
3. “… it is beyond the powers of the record whether through a prepared sometimes traumatised and tired
investigators to purport themselves statement or interview to explain and operational officers. Each should
to decide the merits of a case that justify his actions by reference to the continue to seek informed legal advice
they consider calls for an answer. The circumstances as the officer believed them specific to their individual cases on what
legislation cannot be interpreted as to be at the time of the incident. From options are available to them. Whichever
empowering the investigators to make a practical point of view, it may assist option is selected it is paramount that
findings that would have the potential the officer to deal with this by the use it advances the best interests of the
to be so prejudicial or unfair” before of an appropriately prepared statement officer ■
either a misconduct panel or court. that covers the essential legal points and
4. In this case, the investigator’s report application of them to the individual
exceeded their powers. officer’s justification for the use of force.
It provides an important point of Once such a prepared statement is