Neutral Citation Number: [2014] EWHC 400 (Admin)
Case No: CO/8782/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West, Manchester M60 9DJ

Date: 20/02/2014

Before:

MR JUSTICE STEWART
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Between:

	The Queen on the application of Ross David Ernest Miller (By his Litigation Friend Jan Temple)	Claimant	
	- and -		
	Chief Constable of Merseyside Police	Defendant	
	-and-		
	The Independent Police Complaints Commission
Ms Claire Mannion
Mr David Priestley
	
Interested Parties	

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Mr Gask (Counsel) (instructed by Broudie Jackson Canter) for the Claimants
No appearance for or on behalf of any other party

Hearing dates: 20 February 2014
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Judgment
Mr Justice Stewart: 

Introduction
1.	The Claimant (“C”) seeks judicial review of two misconduct meetings which took place on 10 April 2013 and 9 May 2013.  The relief sought is that the findings of those meetings be quashed and that it be ordered that they be re-held with a different decision maker.   Apart from C, no other party attended the hearing.
2.	The misconduct meetings found allegations of misconduct made by C against the Second and Third Interested Parties (both police constables) to be “not proved”.  
3.	The allegations made by C against the police constables can be summarised in this way: at about 6.15pm on 18 February 2011 C says he was assaulted by the two police officers in a public shopping area in Liverpool.  There was an encounter between a number of police officers and a group of youths.  One of the youths had just been the victim of an assault.  C says that PC Mannion manhandled him and pushed him forcibly against the police vehicle; he says that PC Priestley sprayed him in the face at a dangerously close range with CS spray – this despite the fact that he was already restrained on the ground by two policemen.  
4.	C formally complained about the police officers’ behaviour.  After the majority of his complaints were rejected by an internal investigation, he appealed to the IPCC who upheld his appeal in a number of respects and reported critically on the conduct of the officers, recommending they both faced misconduct proceedings.  These were the proceedings held on 10 April 2013 (PC Mannion) and 9 May 2013 (PC Priestley).
Subject Matter of the Judicial Review  
5.	The Claimant’s claim was on three grounds, namely:
(i)	That he and his mother were excluded from part of the misconduct meetings in breach of the Police (Conduct) Regulations 2008 (“the 2008 Regulations”).
(ii)	Unfairly and unreasonably refusing to provide him with the transcript of the misconduct meetings and the reasoned decision of the Chair.
(iii)	Coming to an irrational conclusion.
 
6.	The Defendant (“D”) in the Summary grounds for contesting the claim provided C with the written decisions of the Chair (Chief Inspector Powell).  Whilst accepting that police misconduct proceedings were amenable to judicial review, D said he would not be making any submissions in respect of C’s application for an order quashing the findings, but expressed the view that the police officers should be joined as interested parties
7.	The IPCC in their acknowledgment of service stated: 
“The Independent Police Complaints Commission supports the Claimant’s submissions but wishes to reserve the right to make further and more detailed submissions in the event permission is granted and the matter is contested.”
Permission was granted by Judge Pelling QC on 2 October 2013 save in relation to the claim for a transcript, and for reasons – the latter had already been provided.  The police officers were joined as Interested Parties.
8.	Since then the following has happened:
(i)	The IPCC wrote on 17 October 2013 confirming that it had no further submissions to make.
(ii)	The police officers’ solicitors wrote to the court on 21 November 2013 confirming that they would not be submitting detailed grounds contesting C’s application.  They said they were unable to expose themselves or the Police Federation to the risk of adverse costs, but they asked the court to note their concern in regard to the application for a re-hearing of the misconduct matter.  I have read that letter in full and taken note of its contents.
(iii)	C attempted by letters dated 17 December 2013, 4 January 2014 and 20 January 2014 to resolve the proceedings.  D has not agreed to a consent order stating that he did not intend to resist the claim but that he was “content to leave the matter to the court.”
First Ground: Exclusion of C and His Mother from Part of the Misconduct Proceedings
9.	Regulation 31(3) of the Regulations states, so far as material, “…the complainant or any interested person may attend the misconduct proceedings as an observer up to but not including the point at which the person conducting or chairing those proceedings considers the question of disciplinary action.”
10.	In the absence of any argument to the contrary it appears to me that C’s mother, C being a minor, qualified as an “interested person”.
11.	There are provisos to regulation 31(3), but neither D nor any Interested Party has suggested that they are relevant.  In those circumstances, C and his mother were entitled to attend the proceedings up to but not including the point of the consideration of disciplinary action.  Since there was no finding of misconduct against either police officer, this point never arose.  It follows that C and his mother should have been permitted to remain until the end of the proceedings.  No explanation has been provided as to why C and his mother were excluded prematurely.  It seems to me that the Regulation is an important one providing for open justice.  Such a breach of the 2008 Regulations without any explanation would lead a fair minded and informed observer to conclude that there was a real possibility of bias.  In my judgment and in the circumstances of this case that is sufficient to require a re-hearing of the misconduct meetings.  This is particularly so where the allegations against the officers were found to be not proven in circumstances which I will turn to under Ground 2.
Ground 2 – Irrational Conclusion
12.	Regulation 34 of the 2008 Regulations provide:
“Procedure at misconduct proceedings
(1)   Subject to these Regulations, the person conducting or chairing the misconduct   proceedings shall determine the procedure at those proceedings. 
……………….
(13) The person or persons conducting the misconduct proceedings shall review the facts of the case and decide whether the conduct of the officer concerned amounts –  
(a) in the case of a misconduct meeting, to misconduct or not; or 
(b) in the case of a misconduct hearing, to misconduct, gross misconduct or neither. 
(14) The person or persons conducting the misconduct proceedings shall not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless— 
(a) he is or they are satisfied on the balance of probabilities that this is the case; or 
(b) the officer concerned admits it is the case.”
13.	There is detailed exposition by C of the claim of irrationality.  The court is in a somewhat difficult position in that it has decided to quash the findings of the misconduct meetings on the basis of Ground 1, and has no real response to the allegations of irrationality.  Absent detailed representations on a number of key findings by Chief Inspector Powell, I do not wish to trespass too much on the further meetings which will now take place.  Although both police officers could have made representations and attended the hearing, I do not think it would be appropriate for me to review in detail all the evidence and submissions relied upon by C in support of this ground.  That said I would, in any event have quashed the decisions on the basis of irrationality.  That is because there are certain clear and obvious flaws in Chief Inspector Powell’s reasoning.  I shall limit myself to those.  
14.	I must set out a little more by way of background.  I note that the Defendant does not materially take issue with the facts set out in paragraphs 4 – 26 of the Claimant’s Statement of Facts and Grounds.  Paragraphs 4 – 10 of those facts states as follows:
“4. At around 6:15pm on 18 February 2011 the Claimant, then aged 15, was in the centre of Liverpool in the company of a group of other boys of similar age.  One of the boys was assaulted by unidentified assailants some distance from the rest of the group, and the others ran over and gathered around him.
5.  Two male police officers, PC Priestley and PC Muckle, arrived on the scene promptly and took the boy who had been assaulted into their custody; placing him in their vehicle.  This caused frustration amongst the rest of the group, including the Claimant, because he felt that the victim had been targeted by the police rather than the perpetrators of the assault.
6. The police spoke calmly to the boys and there was no suggestion of aggression or violence from any of them. Suddenly a female police officer (PC Mannion) and a female special constable (SC Doherty) arrived on the scene. PC Mannion immediately began pushing the boys away from the vicinity of the police vehicle. The Claimant was pushed away by PC Mannion, then as he tried to leave he was pulled back towards her. He was then turned and pushed aggressively into the side of the police vehicle. As the Claimant attempted to pull his hands from his pockets the two male police officers stepped in and grabbed him and, together with PC Mannion, dragged him to the floor. Once the Claimant was on the floor in a seated position, being held down by the male officers PC Priestley sprayed him in the face at close range with CS incapacitant spray.
7. The Claimant was then handcuffed and held face down on the ground for around 2½ minutes, before he was allowed to get up and then taken into police custody.
8. All of the above was captured on the city centre CCTV system. Copies of the footage are enclosed at [C73].
9. The Claimant was arrested by PC Priestley at the scene for an offence under s5 of the Public Order Act 1986, although the Claimant was not told why he was being arrested. At the police station he was re-arrested for the more serious offence of affray. He complained about pain in his chest and his eyes arising from his restraint and the use of CS spray. He was treated at the hospital then returned to custody. Following concerns about the effect of the CS spray in respect of his contact lenses the Claimant visited hospital again to have them removed, before returning to the police station. He was released on bail at approximately 4am.
10. The Claimant was charged with an offence under s5. The police officers’ accounts of what took place appear in their statements prepared for the prosecution [C1, C6, C12, C19]. The prosecution was discontinued before trial on the advice of the Crown Prosecution Service.”
15.	The IPCC issued its decision on 14 January 2013.  It upheld C’s complaint and found:
(a)	PC Mannion used excessive force;
(b)	That the use of CS spray by PC Priestley was not reasonable or proportionate;
(c)	That there were clear discrepancies between the evidence given by the police officers and the cctv footage.
16.	At the misconduct meeting in respect of PC Mannion, she faced allegations as follows:
“It is alleged that on 18 February 2011 in Church Street, Liverpool, you used excessive force on Ross David Ernest Miller during his detention and arrest, by taking hold of him and forcibly pushing him against the side of the police vehicle.  Ultimately resulting in Mr Miller being taken to the floor.  
There was clearly no corroborating evidence to support the justification you provided for using such force.
Furthermore that you did not “act with self control and tolerance” when you approached Mr Miller and the group of youths, given that the level of force was in no way reasonable, taking into account Mr Miller was a juvenile, standing with his hands in his pockets and not appearing to pose any physical risk to yourself or your colleagues.
You further breached the Standards of Professional Behaviour (Duties and Responsibilities) in respect of the accounts you provided which contained significant irregularities, which was also inconsistent with the cctv footage.
You breached the Standards of Professional Behaviour:
Use of Force
Authority, Respect and Courtesy
Duties and Responsibilities”
17.	In summary PC Mannion said that she attended at a large scale disturbance and her interaction with C was designed to de-escalate the situation.  She said that she heard mention of a blade and made a decision to search him on this basis.  She felt threatened because C had made his body rigid.  Chief Inspector Powell’s finding was that PC Mannion had not breached the Standards of Professional Behaviour.  He had viewed the cctv which captured the incident from two different angles but without audio.  Therefore it was said that PC Mannion’s assumption that she heard a member of the group shout “someone has a blade” could not be discounted and though her three colleagues present did not hear this they were engaged with other aspects of the incident.  The reasons continued:
“
•	The juveniles in the group displayed violent tendencies as demonstrated by Levi Hinds who had been assaulted and after being placed in the police vehicle for his own safety he “booted” the police door open and another youth on the video looks like he has a bloody nose. 
•	I have taken full cognisance of the impact factors that you have alluded to and the fact that the youths were acting as “one” with a pack mentality, this is also supported by Constable Cade, Personal Safety Co-ordinator.  He has also reviewed the evidence and considers the actions taken by Constable Mannion to be lawful, proportionate and justified in the circumstances.
•	Your Pocket Notebook entry for this day is very confusing and lacks detail.  Your statement compared to the cctv footage shows some irregularities.  I have taken into account the state of case of R v Roberts [1998], where a witness views a video recording that has been discovered since their original statement had been made, which shows that witness had recollected the incident incorrectly, then the witness should make a new statement….” 
18.	The two reasons upon which I am prepared to say that the decision was irrational are:
(i)	The basis upon which it is said that the “juveniles in the group have displayed violent tendencies”.  The only reasons given for this appeared to be that (i) Levi Hinds had been assaulted (ii) after being placed in the police vehicle for his own safety he “booted” the police door open (iii) another youth on the video looks like he has a bloody nose.  Apart from Levi Hinds booting the police door open when he had been placed in the police vehicle after he had himself been assaulted, I fail to understand the basis upon which the conclusion of a group display of violent tendencies can be supported.
(ii)	Chief Inspector Powell does not address any consequences of PC Mannion’s notebook entry being very confusing and lacking detail and the fact that her account compared to the cctv footage shows irregularities.  These matters were critical in the case.  One can see this from extracts from the IPCC report particularly at pages 4 and 5.  
19.	The allegation against PC Priestley was:
“It is alleged that on 18 February 2011 in Church Street, Liverpool you used excessive force on Ross David Ernest Miller during his detention and arrest.  
Mr Miller was forcibly taken to the floor by yourself, Constable Mannion and Constable Muckle and was clearly firmly restrained and posed no threat to yourself or your colleagues.  You then proceeded to use your CS Incapacitant spray on Mr Miller directly to the side of his face from a distance of less than three feet. 
There was no corroborating evidence to support the justification you provided for using the CS Incapacitant spray in this manner.  
You have breached the Standards of Professional Behaviour:
Use of Force.”
20.	PC Priestley denied the allegation.  In his witness statement dated 18 February 2011 he says that he heard a male voice shouting “get the fuck off me, get the fuck off me”, I immediately turned around and saw Constable Muckle and Constable Mannion struggling with a male I now know to be Ross Miller…at the side of the police vehicle.  Miller was swinging his arms violently from side to side shouting “fuck you, you fat bitch, get the fuck off me.”  As I reached the mêlée Constable Muckle and Constable Mannion had managed to take Miller to the ground but he was still struggling violently, kicking out at officers, despite numerous commands of “stop fighting, stop struggling” from all officers at the scene ….fearing that officers would sustain injury at the hand of Miller’s outrageous conduct, I shouted clear verbal warning towards Miller “stop fighting or you will be sprayed” Miller ignored this warning and continued to resist.  With this I reached for my CS Incapacitant spray and again shouted a warning to both Miller and other officers at the scene “spray”, I then sprayed Miller once to the face and this had the desired effect.”
21.	In the findings of Chief Inspector Powell, she lists the same introductory paragraphs as she had in respect of PC Mannion (including the paragraph about the juveniles in the group displaying violent tendencies).  She then continues:
“I have taken full cognisance of the impact factors that you have alluded to i.e. Mr Miller continued to struggle; he kicked out and tried to stand up in an attempt to break free.  Approximately ten of his mates were stood close to the police vehicle, watching the situation and they could have easily intervened and escalated the situation very quickly.  (They had already displayed violent tendencies as described above).  The incident took place on a busy pedestrianised area outside a popular shopping.  In addition you feared for the safety of your colleagues.
•	Mr Miller confirms in his own account that:
- he tensed his body up and resisted arrest whilst on the floor and continued to struggle 
- he remembers someone telling him to stop struggling and then felt something hot and wet him in the right side of his face.
•	Constable Cade, Personal Safety Co-ordinator, has reviewed the evidence relating to this complaint and in his opinion your actions were in line with Force training methods, but highlight concerns regarding the distance in which you deployed the spray i.e. that being approximately 2 feet.
•	Officers are taught that CS Incapacitant should be used at a distance of 3 feet or more unless there is a significant risk to life.  This was not evident, however Mr Miller was hit on the side of the face.
•	Constable Cade deems the level of force used by you was reasonable, proportionate, necessary and justified; which having read the evidence and viewed the cctv I agree with…” 
22.	I shall restrict my finding of irrationality to these points:
(i)	The same point as mentioned above about the finding that the juveniles in the group had displayed violent tendencies
(ii)	The lack of any clear consideration of the fact that PC Mannion used the CS Incapacitant at a distance  of some two feet rather than the distance of three feet or more, unless there is a significant risk to life.  Nor do I not understand the reference to “this was not evident, however Mr Miller was hit on the side of the face.”
23.	Although this may appear to be quite a detailed exposition, I have done no more than given a very brief overview of a complex evidential situation.  I have not addressed every complaint made by C, most particularly the allegations that Constable Cade’s opinion was itself flawed and untenable.  At first sight I can see some force in the points made by C in that regard.  Nevertheless, since there must now be a fresh hearing, and given my concerns that the police officers are not unduly prejudiced by anything I might say without hearing from them, I will let the matter rest there.  
Conclusion
24.	For those reasons I quash the findings of both misconduct meetings and order that they be re-held with a different decision maker.

Costs
25.	The C seeks costs of the judicial review.  The D objects to the claim for costs.  I have received written submissions from the D.  These proceedings are governed by Part 44 CPR, the material provisions of which are: 
“44.2
(1) The court has discretion as to –
(a) whether costs are payable by one party to another;..
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order….
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;…
(5) The conduct of the parties includes –
……………..
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; ….”
26.	In summary D says he should not pay the costs because:
(i)	As stated in the acknowledgment of service “the Defendant has no power to overturn the decisions made in the meetings or to arrange for them to be re-held.  Even if the Claimant (it should read Defendant) was minded to take such actions, the regulations contain no provisions which would allow the Claimant (Defendant) to do so and such actions would be ultra vires.”
(ii)	Once a decision is made the Defendant has no further recourse to procedure and unless and until the decision is reversed appeal or quashed by judicial review the Defendant is bound by the decision.
(iii)	The Defendant would have been acting ultra vires had he consented to the decision being quashed at the pre-proceedings stage.
(iv)	Had the Defendant consented to the order sought at the stage of the pre-action letter, he would thereby have been liable to judicial review by the officers for so enabling their further disciplinary procedure.  
(v)	The officers ought to have been Defendants in these proceedings from the start.  They are subject to double jeopardy by virtue of the judicial review proceedings.  However, once they had been joined as interested parties and had indicated an intention not to become involved further, the potential for their bringing judicial review proceedings of the Defendant disappeared.  The Defendant was then free to consent to the order sought and this was done.
(vi)	Consent to the order sought does not mean there will not be a decision on the merits, because the court has to approve the order not merely rubber stamp it.  The court will have to take the representations of the Interested Parties into account.  
(vii)	The officer presiding over the misconduct meeting has to take a decision on behalf of the Chief Constable, whilst remaining independent to preserve the balance between the presenting of charges on behalf of the Chief Constable, and the defence of those charges by those for whom the Chief Constable is responsible.  The decision, on behalf of the Chief Constable, is therefore that of the officer presiding and not of that of the organisation, although it is then adopted by the organisation.
(viii)	Therefore it is submitted that there should be no order as to costs. 
27.	I reject the D’s submissions.  
(i)	C has had to bring full judicial proceedings right up to and including a substantive hearing and a judgment.  He has essentially succeeded in full, apart from the obtaining of the transcript and reasons, the latter of which was done after the claim form had been issued.  C has therefore had to incur all the costs in order to obtain the relief to which he is entitled.  There has been no conduct on the part of the Claimant which can be criticised in these proceedings.  
(ii)	It is correct that D has offered no submissions opposing this application.  However, that cannot be a reason, taking into account all the circumstances of the case and 44.3(5) CPR, for not awarding the C his costs.
(iii)	Even assuming that D is correct about the vires point  the whole reason for these proceedings being necessary, is that D, through the officer presiding over the conduct meetings, acted unlawfully, by reason of procedural irregularity and irrationality.
(iv)	Looking at the correspondence I do not accept the submission that D consented to the order sought.  Indeed D’s covering letter dated 18 February 2014 which came with the costs submissions expressly stated “…the Claimant’s solicitor has sought a consent order from the Defendant seeking the Claimant’s costs.  However the Defendant considers that the Defendant has no powers to agree to quash the decisions of the misconduct meetings, which the Defendant considers would be ultra vires” 
28.	Therefore I award the Claimant his costs of this judicial review against the Defendant.