[2023] UKUT 142 (AAC)

Mr Gillow for the ICO began by quoting the whole of paragraph 21 of Ladkin

“21.

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."

In a highlighted box following paragraph 11.50 is this instruction:

“At the end of a DSI investigation, the investigator must submit a report to the [IOPC] and send a copy to the appropriate authority. The [IOPC] must determine whether the report indicates that a person serving with the police may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings. If the [IOPC] decides that it does, it will notify the appropriate authority. The appropriate authority must then record the matter as a conduct matter and consider whether it should be referred to the [IOPC]. Subject to any decision by the [IOPC] to re-determine the form of the investigation, the investigator of the DSI matter must investigate the conduct matter.”

Where there is no such indication, the [IOPC] may make recommendations or give advice [relating to satisfactory/unsatisfactory performance] as it considers necessary or desirable.”

He noted that in that passage the Court only recited the contents of the IOPC Guidance. Whilst he accepted that such guidance might be useful in the matter, the Court did not make any pronouncement on the effect of such guidance or the actual scope of the IOPC’s powers and the passage was consequently of limited, if any, precedential value (notwithstanding that in its entirety it supported the ICO’s submissions as to the role of IOPC investigations in ascertaining criminal conduct). For completeness, Mr Gillow also noted paragraph 17 of Ladkin, which stated:

“If, during the investigation of a DSI matter, the designated investigator finds an indication that a person serving with the police may have committed a criminal offence or behaved in a matter that would justify the bringing of disciplinary proceedings the Director General of the IOPC (DG) is required to notify the Appropriate Authority ("AA") and the AA is required to record the matter as a conduct matter. If such an indication is found then the IOPC investigation will continue as a conduct matter: see paragraphs 21A (2C), (5) and (6) of Schedule 3 to the 2002 Act.”

As to the question whether a public body could rely on s.30(1)(a)(i) in circumstances where it was not the body ultimately responsible for deciding whether to charge a person with an offence,the ICO agreed with and adopted the reasoning of the Tribunal at paragraphs 33-38. As noted there, the case cited by Mr Williams, Foreign and Commonwealth Office v Information Commissioner (notwithstanding that it was not binding on the Upper Tribunal) was of very limited assistance as, being concerned with the s. 31 exemption, it provided no guidance on who could be the responsible body for the “ascertaining” in the context of the s.30 exemption.

While the ICO accepted that the exemption should be construed in a manner consistent with its purpose and not given unduly wide effect, he nevertheless submitted that, where a body had a statutory duty to investigate a potential offence with a view to deciding or assisting in the decision as to whether charges should be brought, the exemption could apply, even where the ultimate decision on whether to bring charges was made by a different public body. Any alternative finding would risk undermining the purpose of the exemption, to protect the integrity of the decision-making process whereby criminal charges might be brought. It would be unprincipled and against the purpose and intention of the relevant FOIA exemptions to provide a back door which could allow requestors access to such information even where disclosure might prejudice that process. Furthermore, s.30 was not an absolute exemption, such that insofar as it was in the public interest for such information to be disclosed, the exemption would not prevent disclosure.

That was moreover consistent with the wording of the statute, as the Tribunal noted. S.31 made explicit that the authority carrying out the investigation must be the same as the body making the decision (i.e. the body doing the ‘ascertaining’); the same was true of s.30(1)(b). It was a fundamental principle of statutory interpretation that the Courts should seek to give effect to the precise wording used by Parliament: see e.g. Cab Housing Ltd v Secretary of State for Levelling Up, Housing and Communities[2022] EWHC 208 at [67]:

“[t]here are presumptions that every word in an enactment is to be given meaning; that where the same word is used more than once it has the same meaning, and that different words have different meanings unless the context indicates otherwise (Bennion at Sections 21.2 to 21.3) ...”

On that basis, the ICO requested that the Upper Tribunal uphold the decision below on the point.

The ICO then turned to the question whether the functions of the IOPC when conducting the investigation at issue included conducting that investigation “with a view to it being ascertained whether a person should be charged with an offence”.

Given the approach which the ICO invited the Upper Tribunal to take to the question of whether, in principle, separate bodies could be responsible for investigating and ascertaining whether a person should be charged with an offence, he submitted that, as found by the Tribunal, it was clear that the IOPC’s investigation in this instance did fall within the scope of an investigation “with a view to it being ascertained” whether a person should be charged.

As set out at paragraphs 39-49 of the Tribunal’s decision, the Director General of the IOPC was under a duty to investigate where he deemed it necessary to do so. Following such an investigation, the Director General would consider whether an offence has or may have been committed (with respect to Mr Williams, nothing turned on that distinction, as in either case it would be the DPP who would make the decision whether in fact to bring charges and ultimately it would be for the courts to decide whether an offence had been committed). If the Director General took the view that an offence has or may have been committed, he would provide the report to the DPP, who would take the ultimate decision on whether to bring charges. Unless exceptional circumstances applied, the DPP would not bring charges prior to competition of the Director General’s report or the Director General had certified the matter under Schedule 3, paragraph 20A of the 2002 Act.

In light of that procedure, it was in the ICO’s submission clear that the investigation was conducted “with a view to it being ascertained” whether a person should be charged with an offence, albeit that the ultimate decision would not be taken by the IOPC itself. Accordingly, the Commissioner invited the Upper Tribunal to uphold the Tribunal’s findings on that point also.