[2023] UKUT 142 (AAC)

Mr Williams argued that paragraphs 36 and 49 of the Tribunal’s decision were wrong in law.

He submitted that the IOPC was not under a duty to conduct an investigation with a view to it being ascertained whether a person should be charged with an offence. He agreed with the ICO published guidance, Version: 1.0, which stated that

“11.

Section 30(1)(a) can only be claimed by a public authority that has a duty to investigate offences. As discussed above, a duty imposes an obligation to carry out the investigations as opposed to a discretionary power to do so. Public authorities should be able to demonstrate to the Information Commissioner how this obligation arises. Usually it will be by statute.”

In R (Ladkin) v IOPC [2021] EWHC 122 (Admin) May J said at [21] (with emphasis added):

“The IOPC Statutory Guidance (May 2015) which was in force at the material time ("the IOPC Guidance") describes the purpose of a DSI Investigation and deals with the outcomes. Guidance as to the outcomes of DSI investigations is to be found at paragraphs 11.49 to 11.51:

"11.49

The outcomes of a DSI investigation will reflect the fact that it is not an inquiry into any criminal conduct or complaint allegation against any person serving with the police.

11.50

The purpose of a DSI investigation is to establish facts, the sequence of events and their consequences. Its role is to investigate how and to what extent, if any, the person who has died or been seriously injured had contact with the police, and the degree to which this caused or contributed to the death or injury."”

He also relied on the explanatory notes to s.30 FOIA which stated:

“Section 30: Investigations and proceedings conducted by public authorities

108.

Subsection (1) exempts, as a class, any information held at any time by a public authority for the purposes of a criminal investigation or criminal proceedings conducted by it”.

Mr Williams also submitted that paragraph 48 was wrong in law where it said that

“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.

The correct test, as set out in Ladkin, was “may have been committed”.

Moreover, s.31(1)(g) FOIA clearly showed that Parliament was aware of the need to discriminate between the authority holding the information and any (other) authority, in this case the CPS:

“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)”.

The following exemptions clearly applied to an IOPC investigation. S.31 excluded s.30, so it was one or the other:

“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,

(c)

the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,

(d)

the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,

(e)

the purpose of ascertaining the cause of an accident,

…

(j)

the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work”.

The 2015 IOPC statutory guidance made numerous reference to the word “improper”, for example the box at 9.4:-

“Mandatory referral criteria

The appropriate authority must refer complaints and recordable conduct matters that include allegations of conduct which constitutes:

• a serious assault

• a serious sexual offence

• serious corruption, including abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship

• a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which, in either case, is aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion or other status identified in paragraph 9.24 of this guidance

• a relevant offence

• complaints or conduct matters arising from the same incident as one where conduct falling within the above criteria is alleged; or

• any conduct matter relating to a chief officer (or the Deputy Commissioner of the Metropolitan Police Service) and any complaint relating to a chief officer (or the Deputy Commissioner of the Metropolitan Police Service) where the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of, if it were proved, would not justify the bringing of criminal or disciplinary proceeding”.