Two bites of the apple- limitation in professional negligence cases
R (on the application of Jeffrey) v The Independent Police Complaints Commission  EWHC 102 (Admin)
The Claimant (John Jeffrey) was, at the relevant period, a full-time Police Federation Representative for officers of the Metropolitan Police Service.
The Police Federation of England and Wales is the statutory staff association for offices below the rank of Chief Inspector. Under domestic law, police constables (of any rank) are prohibited from forming or joining trade unions. The Police Federation provides for alternative collective representation. Police Federation Representatives hold welfare responsibilities for officers, in particular for those subject to investigations or involved in legal proceedings.
In the present case, the Claimant was responsible for the welfare of Police Sergeant White (“PS White”) and Police Constable Harratt (“PC Harratt”) who were witnesses in the inquest that followed the death of Sean Rigg at Brixton Police State on 21 August 2008. Suspicion arose as to collusion between PC Harratt and PS White over evidence in the inquest. The Independent Police Complaints Commission (the “IPCC”), the Defendant, investigated the purported collusion and, during the course of investigation, came to suspect that the Claimant may have been a party to the collusion. The IPCC took steps to interview and arrest the Claimant and search his home. Subsequently, the IPCC concluded that no criminal proceedings should be commenced against the Claimant. PC Harratt was not prosecuted, but PS White was eventually prosecuted for perjury, arising from his evidence at the Iinquest. PS White was acquitted of all charges in November 2016.
In March 2014, the IPCC report into the Rigg matter was published. The report noted that the Claimant had answered all questions that were put to him during the course of the IPCC investigation, that his contact with the officers in question appeared to show that he was providing support and advice to the officers, and that there was no evidence indicating that the Claimant had breached the standards of professional behaviour. The IPCC confirmed that there were no findings against the Claimant relating to his conduct during the inquest and that there was no indication that any criminal offences had been committed.
The Claimant subsequently complained about the IPCC investigation into him. The IPCC’s report into these complaints upheld none of his significant complaints.
In this claim for judicial review, the Claimant challenged several aspects of the IPCC investigation into him, including how it handled his complaints about their investigation after the conclusion of its initial investigation.
With regards to the IPCC’s review of the complaints about the IPCC’s investigation into him, the court approached the matter on the basis that his challenge must meet the Wednesbury test (as established in Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223). In summary, this test is as follows:
"If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere... but to prove a case of that kind would require something overwhelming...” (per Lord Greene).
This threshold is extremely difficult to meet. In the present case, Lord Justice Irwin noted that it had been met in respect of two heads: firstly, the “over-close and inappropriate relationship” between the conduct of the investigation into the Claimant’s complaints and those within the IPCC who were being investigated; and, secondly, the delay on the IPCC’s part in considering the Claimant’s complaints.
In respect of the first head, Irwin LJ found that (at para. 123):
“There was a clear lack of independence in the way Mr Hassan and Mr Paul Davies [the IPCC investigators] set about their investigation of the Claimant's complaints. Even in the context of complaints which were significant but capable of being defined as 'non-serious', there was an improper and inappropriate closeness and consultation between those investigating and those subject to the complaints”.
The learned judge went on to note however that “I am not able to reach any conclusion that a different outcome would in fact have emerged from a more independent approach, in this instance”.
Regarding the second head, Irwin LJ concluded that (at para. 126):
“As to delay, there was the clearest failure to look at this complaint properly. Here, I am able to say that the evidence overwhelmingly points to marked delay in concluding that there was no basis for action against the Claimant, as was recognised in strong terms by Mr Penrose. There was here both a failure to investigate to a reasonable standard, and an obvious answer which would and should have emerged from a proper investigation”.
The learned judge was critical of the length of time it took the IPCC to resolve the Claimant’s complaints. The Claimant first complained to the IPCC in March 2014. The IPCC’s report was not formally served on him until March 2015, a year after his complaints had been lodged.
For various reasons, Irwin LJ was unable to provide judgment on the arrest of the Claimant and the search of his home in relation to the IPCC’s investigation.
This case is a reminder for regulatory bodies about the importance of ensuring that there is clear demarcation between those involved in reviewing complaints made by someone who has themselves been the subject of investigations by that regulatory body. It is axiomatic that a regulatory body’s review of a complaint by such a person is likely to be found wanting if the internal reviewers are closely connected with those persons who were themselves involved in the original investigation into the regulated person. Separately, regulatory bodies should act expeditiously in considering complaints. Complaints-handling procedures should be concluded in a timely manner and delays to the resolution of complaints will only be reasonable if there is objective justification for delay.
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