[2023] UKUT 142 (AAC)

So far as material, the Tribunal held that

“Issues
31. The issues we have to determine are:

31.1.

Does the IOPC have a duty to conduct an investigation with a view to it being ascertained whether a person should be charged with an offence?

31.2.

Was the information at any time been held by the authority for the purpose of any such investigation?

31.3.

In all the circumstances of the case, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?

Evidence
32. We have read and taken account of a closed and open bundle of documents.

Discussion and conclusions

Does the IOPC have a duty to conduct an investigation with a view to it being ascertained whether a person should be charged with an offence?

33.

Mr. Williams relies on the meaning of ‘ascertain’ as discussed in DVLA v Information Commissioner and Williams [2020] UKUT 334 (AAC) (‘DVLA’). That
decision concerned section 31(1) which provides materially as follows:

31 Law enforcement

(1)

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

...

(g)

the exercise by any public authority of its functions for any of the purposes specified in subsection (2),

...

(2)

The purposes referred to in subsection (1)(g) to (i) are—

(a)

the purpose of ascertaining whether any person has failed to comply with the law,

(b)

the purpose of ascertaining whether any person is responsible for any conduct which is improper,

...”.

34.

To the extent that the Upper Tribunal in DVLA gave any view on the meaning of the word ascertaining, we think there was at least some approval of the analysis of
the First Tier Tribunal in Foreign and Commonwealth Office v Information Commissioner EA/2011/0011, at para 69 DVLA:

Much more persuasive (albeit again not determinative) is the First-tier Tribunal’s analysis in
Foreign and Commonwealth Office v Information Commissioner (EA/2011/0011), where it expressed the view that “the word ‘ascertain’ connotes some element of determination with regard to non-compliance with the law or responsibility for conduct which is otherwise improper” (at paragraph 33).

35.

The wording in section 31(2)(a) and (b) is different to that in section 30(1)(a)(i). Under section 31 the body must be exercising its functions for the purpose of
ascertaining something. Under section 30 the investigation must be conducted with a view to it being ascertained whether a person should be charged. The latterformulation lends itself more easily to an interpretation that allows for the ascertaining to be conducted by a body other than the public authority. For those reasons we do not find DVLA of assistance in relation to the interpretation of section 30(1)(a)(i), other than we agree that the word ‘ascertain’ connotes some
element of determination.

36.

We do not accept that it is necessary under section 30(1)(a)(i) that the investigation be conducted with a view to it being ascertained by the IOPC whether a personshould be charged with an offence.

37.

The words ‘by the authority’ could have been included, as they have been in section 30(1)(b): ‘any investigation which is conducted by the authority and in thecircumstances may lead to a decision by the authority to institute criminal proceedings...’ Alternatively, the formulation used in section 31 could have been
used. Section 30(1)(a) could have read ‘Any investigation which the publicauthority has a duty to conduct for the purpose of ascertaining – (i) whether a person should be charged with an offence’.

38.

As those words have not been used, in our view there is no requirement under section 30(1)(a)(i) for the IOPC to be the body that will ascertain whether or not a
person should be charged with an offence. It is sufficient if the investigation is conducted by the IOPC with a view to it being ascertained by the CPS whether a
person should be charged with an offence.

39.

Does the IOPC have a duty to conduct such an investigation? Having reviewed the Police Reform Act 2002 (PRA) the tribunal’s view of the duties of the IOPC is as follows.

40.

Under section 10(4) PRA it is the duty of the Director General of the IOPC to exercise and perform the powers and duties conferred on him in the manner that the
Director General considers best calculated for the purpose of securing the propercarrying out of the Director General’s functions under subsections (1) and (3).Under section 10(1) the Director General’s functions include:

(a)

to secure the maintenance by the Director General and by local policing bodies and chief
officers, of suitable arrangements with respect to the matters mentioned in subsection (2);

(b)

to keep under review all arrangements maintained with respect to those matters;

(c)

to secure that arrangements maintained with respect to those matters comply with the
requirements of the following provisions of this Part, are efficient and effective and contain
and manifest an appropriate degree of independence;

(d)

to secure that public confidence is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters;

(e)

to make such recommendations, and to give such advice, for the modification of the
arrangements maintained with respect to those matters, and also of police practice in relation to other matters, as appear, from the carrying out by the Director General of the Director General's other functions, to be necessary or desirable.

41.

The ‘matters’ in subsection (2) are:

(a)

the handling of complaints (within the meaning given by section 12);

(b)

the recording of matters from which it appears that there may have been conduct by persons serving with the police which constitutes or involves the commission of a criminal offence or behaviour justifying disciplinary proceedings;

(ba) the recording of matters from which it appears that a person has died or suffered serious injury during, or following, contact with a person serving with the police;

(c)

the manner in which any such complaints or any such matters as are mentioned in paragraph (b) or (ba) are investigated or otherwise handled and dealt with.

42.

Under Schedule 3 PRA (Handling of Complaints and Conduct Matters etc.) it is the duty of the Director General to determine whether or not it is necessary for a
complaint or matter referred to it to be investigated.

43.

If the Director General determines that it is necessary for the complaint or matter to be investigated, it is the duty of the Director General to determine the form which the investigation should take, including determining that the investigation is to take the form of an investigation by the Director General.

44.

Where the Director General determines that the Director General should carry out the investigation of a complaint or matter, paragraph 19 applies, under which theDirector General designates a person to take charge of the investigation.

45.

Under paragraph 20(1), no criminal or disciplinary proceedings shall be brought in relation to any matter which is the subject of an investigation in accordance withSchedule 3 until the conduct to which the investigation relates has been certified under paragraph 20A (Footnote: ¹) or, where the Director General has personally carried out the investigation, a report has been completed by the Director General. These restrictions do not apply where it appears to the DPP that there are exceptionalcircumstances which make it undesirable to delay the bringing of proceedings.

46.

Under paragraph 23 on receipt of the report by the IOPC or on its completion by the Director General, the Director General shall determine whether the report
indicates that a criminal offence may have been committed and whether it is appropriate for the matters dealt with in the report to be considered by the DPP or
that any matters in the report fall within any prescribed category of matters. If so, the Director General shall notify the DPP of the determination and send him a copy of the report. The DPP shall notify the Director General of any decision of his to take or not to take action.

47.

Considering those provisions as a whole, including in particular the general duty under paragraph 10(4), the functions under paragraph 10(1) and the matters under
paragraph (2), once the Director General has determined that the Director General should carry out the investigation of a complaint or matter, we consider that the IOPC is under a duty to carry out that investigation and was therefore under a duty
to carry out the investigation in issue in this appeal.

48.

In considering whether there was a duty to conduct the investigation with a view to it being ascertained whether a person should be charged with an offence, we
have taken into account the provisions as a whole, including in particular the restriction in paragraph 20 on criminal proceedings until the investigation is completed or the conduct certified and the duty in paragraph 23 to determine whether the report indicates that a criminal offence has been committed and whether it is appropriate for the matters to be considered by the DPP, and if so, to notify the DPP of that determination. We have also considered the specific facts of the case, including the fact that this was a death in custody, and that a file of evidence was ultimately submitted to the CPS for them to determine whether criminal charges would be brought and to the Health and Safety Executive for the consideration of corporate charges.

49.

Taking all those matters into account we consider that in this case there was a duty to conduct the investigation with a view to it being ascertained, ultimately by the CPS, whether a person should be charged with an offence.

50.

The report consists of information held by the IOPC for the purpose of that investigation. The exemption is therefore engaged.

Does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?

51.

We accept that there is a very strong public interest in transparency in relation to the handling of matter arising out of a death in Police custody. In our view this
public interest in transparency can normally be satisfied by the publication of thereport after the related proceedings are completed. We do accept in this case that there is some public interest in releasing the report before the inquest takes place, because of the extensive period of time that has passed since the incident.

52.

However, even though 8 years had passed since the individual’s death in police custody, we still take the view that the public interest balance favours maintaining
the exemption while proceedings have not been completed. At the date of the request, further proceedings were being considered by the Coroner. Once any inquest has concluded, it is possible that the CPS may conduct a further review of the evidence, of which the investigation report would be a key part. In thosecircumstances we accept that there is a clear risk of undermining those proceedings by the premature release of the IOPC report. There is a very strong public interest in ensuring that the inquest and any following proceedings can operate properly. In our view this outweighs the public interest in publishing the report before the proceedings have concluded.

53.

On this basis we conclude that the IOPC were entitled to withhold the report under s 30(1)(a)(i).

54.

For the reasons set out above this appeal is dismissed.”

The Tribunal refused Mr Williams permission to appeal against its decision on 2 March 2023. He applied to the Upper Tribunal for permission to appeal.

On 13 March 2023 I granted Mr Williams permission to appeal against the decision of the Tribunal.