A question of independence

Article 3 investigative duty remains a grey area and much still needs to be done to clarify when the state has an obligation to conduct an independent investigation. On 12 March 2009, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, set out his view that police complaints involving arguable breaches of article 3 should be investigated independently of the police. However, at the moment the police are still investigating the police and the obligation to hold an independent investigation is based on a series of tests: is there an arguable breach of article 3? Is there a serious injury? Are there any other means to elicit the relevant facts? Would the outcome of the investigation be proportionate to costs? And finally, is it in the public interest?

It seems that only when all the boxes are ticked can an independent investigation be considered, and, from the Home Affairs Select Committee report published on 7 April 2010, it is clear that it is on very few occasions that such investigations will take place. In the period of 2008-09, out of 31,259 complaints, only 88 were independently investigated by the IPCC, representing less than one per cent of all complaints that were held to be arguable breaches of article 3.

Arguable breach

If an arguable breach is identified then article 3 provides: 'No one shall be subjected to torture or inhuman or degrading treatment or punishment.' In Assenov v Bulgaria [1999] 28 EHRR 652 ECHR: 'The court recalls that ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.' In the case of R (P) v Secretary of State for Justice [2009] EWCA Civ 701, the court found that it 'must involve a real and immediate risk to life'. However, in the case of Saya v Turkey Application No. 4327/02 Judgment 7 October 2008, the court stated that in respect of some of the applicants who had suffered injuries which included tenderness to the back of the legs and back, scratches on the back and tenderness and bruising there had also been a breach of article 3. This clearly shows that there is a wide interpretation of the minimum level of severity and whether there is an arguable breach will greatly depend on the circumstances of each case.

The extent of the arguable breach also has an impact on the scope of the inquiry and what might satisfy it. In R (AM & Ors) v (1) Secretary of State for the Home Department (2) Kalyx Ltd & Bail for Immigration Detainees (Intervener) [2009] EWCA Civ 219, the court acknowledged there was an arguable breach after detainees suffered ill treatment by the detention staff during a disturbance caused by other inmates. One of the points arising from that case was that the threshold for breaches needed to be more clearly defined. The dissenting judgment of Longmore LJ is a good example of the tensions at work: 'It is not difficult to imagine cases of alleged article 3 mistreatment which would meet a full independent inquiry. But every allegation of a breach of article 3? There must surely be some sense of proportion.'

The proportionality argument should also not be ignored and needs to be taken into consideration at an early stage in deciding whether your client's case will meet the criteria for an independent investigation. This was the approach that I adopted in my client's case who had been tasered five times by officers of the Greater Manchester Police during an epileptic seizure he was having at his local gym. The effects of the tasers resulted in my client spending nearly two weeks in hospital recovering from organ failure and nerve-related damage. Even through the injuries that my client suffered constituted an arguable breach, there was no immediate plans to carry out an independent investigation. It was only when I highlighted the severity of the injuries and that police officers in the Professional Standards Department would lack the independence and impartiality to investigate such a complaint did the IPCC finally agree to hold an independent investigation.

Level of independence

The level of independence is therefore also an important factor in the decision-making process by the IPCC, and if a strong argument can be made on this point based on the circumstances of your client's case then you are half way there. In the case of SP v Secretary of State for Justice [2009] EWHC 13 (Admin), Pitchford J held: 'I am equally persuaded that past hierarchical or institutional connection between the investigator and someone 'implicated' could well cause an objective lack of practical independence. That may arise because the investigator had once served with the person implicated in either a junior or senior capacity, whether or not they had personal contact when serving together.' Practical independence was defined in the case of Porter v Magill [2001] UKHL 67 by Lord Hope: 'The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a tribunal was biased.'

Although the lack of practical independence in the police investigating the police is an obvious point that can be made you need to take into consideration that the IPCC have a discretion in the form of investigation they can conduct (schedule 3, paragraph 15(2) of the Police Reform Act 2002) and can comply with the practical independence point by referring the complaint to a different police force to investigate. However, the unconscious bias of the police investigating the police, the Re Medicaments test can not be so easily remedied, 'it is the public perception of the possibility of unconscious bias which is the key'. In those circumstances only an independent investigation will suffice and be effective, and this point was held by Nicols J in Morrison v IPCC & Commissioner of Police for the Metropolis & Secretary of State for the Home Department [2009] EWHC 2589 (Admin): 'He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Met Police will not be independent.'

Effective investigation

Another factor which is central to an independent investigation is defined by the court in Jordon v UK (2001) 37 EHRR 52, which stated that: 'The investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.' Jackson J in R (Wright) v Secretary of Home Department [2001] EWHC Admin 520 goes one step further and says: 'Such investigation is required, in order to maximise future compliance with the articles.' The purpose in other words is neither purely compensatory nor purely retributive, nor is it necessarily restricted to what has happened to the particular victim.

The effectiveness of the investigation is an important point as the IPCC justify that it will only be in breach of the obligation under article 3 if none of the suggested alternatives, singly or together, are sufficient referring to the prospects of either criminal and/or civil proceedings. However, that view is no longer recognised as a means to fulfil the criteria for an effective investigation and the judgment of Sedley LJ in R (AM & Ors) goes some way in removing that presumption: 'Litigation is designed to secure individual redress, prosecution to establish individual culpability.' He does, however, make the distinction that the 'average wrongful arrest, assault or false imprisonment claim' can be effectively investigated through civil proceedings and this was reiterated in the judgment of Longmore LJ who held that civil proceedings could be one means of discharging the investigative obligation under article 3.

However, he noted that in Banks v UK the court had confined the relevance of civil proceedings to allegations of negligence, and did not comment more generally on the materiality of civil proceedings as a means of investigating alleged assaults by the police.

Reference should also be made to the Home Affairs Select Committee report which echoes the arguments made by complainants that the complaints procedure can not be held to be an effective investigation and comments to that effect can no longer be considered as 'broad generalisations'. The committee also heard that the appeals to the IPCC did not increase the possibility that there would be a prosecution and that any deficiency in the initial police investigation into the complaint was not automatically remedied. The local investigation and the appeal process can not be seen as a credible way of investigating serious complaints and will not satisfy the obligations of the IPCC if an arguable breach is identified.

Public interest

The last test that needs to be considered is whether it would be in the public interest to hold an independent investigation. The case of R (Amin) v Secretary of the Home Department [2003] UKHL 51 sets out the minimum requirements in Lord Bingham of Cornhill's judgment which includes the need for a 'sufficient element of public scrutiny'.

To meet this test there will need to be wider issues in relation to your client's complaint; however, section 22 of the Police Reform Act 2002 states: 'An independent investigation is conducted by IPCC staff into incidents that cause the greatest level of public concern, have the greatest potential impact on communities or have serious implications for the reputation of the police service.'

Although the average wrongful arrest, assault or false imprisonment claim may not fall within this category this does not prevent the argument being made in cases where there can be shown to be a significant impact on community relations with the police in not holding an independent investigation.

The local investigations conducted by the police are far from being independent or effective and are more like a 'police-controlled exercise' rather than an investigation. Although the IPCC has limited resources to investigate every arguable breach of article 3, it is not acceptable that it can not investigate more than one per cent of all complaints.

The new IPCC Statutory Guidance could have been the opportunity to address this issue and for the IPCC to take the necessary steps to impose a stricter criteria for investigating police assaults and address the damaging impact that they have on the perception of the police.

However, the more serious injuries do not feature highly in the new guidance and shows a reluctance by the IPCC to recognise the problem that still exists in the police complaints procedure.

The IPCC cannot forget that it is the police ombudsman and that although the cooperation of the police is essential for a complaints procedure to work that does not mean it should continue to relinquish its mandatory duty to those who are meant to answer to it.